U. K. SHAMANNA v. H. G. GOVINDE GOWDA — 1987 DIGILAW 121 (KAR)

KULKARNI, J. ( 1 ) THE petitioner by filing this election petition under Section 81 of the representation of the People Act, 1951, challenges the election of respondent No. l to the Karnataka Assembly held in 1985. He has also prayed for recounting. He has sought for setting aside of the election of respondent No. 1 and also for a declaration that he is duly elected to the Assembly on the following grounds: i) The petitioner had contested the assembly election from 152 Shringeri legislative Assembly Constituency as a Congress-I candidate. Respondent no. 1 contested the said Assembly election from the said Constituency as a Janatha candidate. The respondents 2 to 4 had contested the said election as independent candidate. Respondent No. 5 had contested it as a b J. P. candidate. ii) The election took place on 5-3-85 and the counting of the votes took place on 6-3-85 from 8 a. m. to 1-30 p. m. iii) The counting was held in two rooms one of which measured 23 1/2 feet east-West and 38 1/2 feet North- south. The other room mea- sured 18 1/2 feet East-West and 18 1/2 feet north-South. There were platforms in both the rooms. 12 tables had been arranged in the room measuring 23 1/2 feet x 38 1/2 feet (hereinafter called 'the room No. l' ). 8 tables had been arranged in the other room measuring 18 1/2 feet x 18 1/2 feet (hereinafter called 'the room No. 2' ). There was only one electric bulb burning in each of the rooms. All the windows and one of the doors in room no. 1 had been completely closed and the windows and one of the doors in room No. 2 were completely closed and the other door was half-shut. The light in both the rooms was highly insufficient. The place was highly congested. The counting was being done in great haste. It was not possible for the counting agents of the petitioner to observe properly the ballot papers. The light in both the rooms was highly insufficient. The place was highly congested. The counting was being done in great haste. It was not possible for the counting agents of the petitioner to observe properly the ballot papers. Shivappa, P. W. 2 who was the counting agent of petitioner, p. W. 1 in room No. 1 and Balraj P. W. 3 who was the counting agent of petitioner P. W. 1 in room No. 2, complained to the Returning Officer, sixth respondent about the insufficient of the space and light and about the difficulty envisaged by them regarding the observation of the ballot papers. iv) All the three counting officials at each table were simultaneously sorting out the ballot papers and were counting the ballot papers in great haste. Therefore, it was not possible for the counting agents of the petitioner to observe the ballot papers. The counting agents of the petitioner orally protested with the counting staff regarding the insufficiency of the space and light and the haste in which the ballot papers were being sorted out and counted. But the said protest was of no use. The said Shivappa, p. W. 2 and Balraj, P. W. 3 also complained about these deficiencies to the returning Officer within about a hour after the commencement of the counting. The sixth respondent told them that the procedure adopted by the counting staff was proper and correct and that they cannot make out a grievance in that behalf. He, further, informed that a large number of votes had to be counted and the matter had to be done properly and in time. The Returning Officer further assured the counting agent that if they were not satisfied with the counting, it was open to the election agent or the candidate to seek recounting and hence they need not exhibit any anxiety at that stage at all. At the end of the counting of the ballot papers in each ballot box it was not being announced as to how many votes had been secured by each of the candidates. Even at the end of each round of it was not being to how many votes had been secured by each of the candidates. In fact, the entire counting was done in an atmosphere of confusion, lack of clarity and precision. Even at the end of each round of it was not being to how many votes had been secured by each of the candidates. In fact, the entire counting was done in an atmosphere of confusion, lack of clarity and precision. v) Chinnappa Hegde who has married the sister of Diwakar, who is the son-in-law of respondent No. 1, was interfering with the process of counting and in fact was telling the counting staff to look-after the interest of respondent No. l. Chinnappa Hegde is the Secretary of the Officers Club at Koppa. More than 50% of the counting staff are members of the said Officers Club and therefore, they are all closely interested in Chinnappa Hegde. The said Chinnappa Hegde was having a pre-discussion with the counting staff. The said Shivappa and Balaraj had protected to the counting staff about the interference by Chinnappa Hegde. Chinnappa Hegde was being consulted by the counting staff while deciding about the validity or otherwise of the ballot papers. vi) The petitioner on the basis of the information furnished to him by the counting agents estimates that a minimum of 346 votes cast in favour of petitioner were erroneously counted in favour of respondent No. 1. The petitioner also on the basis of the information furnished to him by his counting agents has reliably learnt that a minimum of 165 votes which were property marked and voted in favour of the petitioner, were wrongly rejected as invalid votes. Further more than 182 ballot papers which were not signed by the polling officer, though they were marked in favour of the petitioner, were rejected on the ground that they were not valid votes as they did not contain the signature of the polling officer. He was also informed by his counting agents that 130 votes marked in favour of respondent No. 1 which were invalid, were counted as valid votes in favour of respondent No. 1. vii) In Hannagi village the petitioner had secured only 6 votes out of 107, while respondent No. 1 secured 97 votes and while the second and fifth respondents are said to have secured 1 and 2 votes respectively and one vote was invalid. The petitioner expected atleast 30% of votes polled in the said Hannagi village. However, he was much surprised when it was told that he had secured only six votes out of 107 votes. The petitioner expected atleast 30% of votes polled in the said Hannagi village. However, he was much surprised when it was told that he had secured only six votes out of 107 votes. Similarly in Alahalli village out of 183 votes the petitioner is stated to have secured only nine votes while respondent No. 1 secured 116 votes and respondents 2 and 3 had secured 2 and 1 votes respectively and 2 votes were declared invalid. The petitioner had expected 40% of the votes in Alahalli village also and, therefore, the said information also has come as a great surprise to him. Respondent No. 1 as per the said calculation is shown to have secured more than 90% of the votes in Alahalli village and Hannagi village. As per the instructions issued by the election commission whenever there is polling of 90% and above, there should be a recount in regard to the booths and it was not done in this case. 19 tendered votes also had not been taken into account. There is a difference of 86 ballot papers. The Returning Officer did not even counter-check 5% of the total number of the bundles of ballot papers. One application was given for recounting by the election agent of the petitioner and another application was given by the election agent of the petitioner regarding the undue interference by Chinnappa Hegde. The said applications were rejected for no valid grounds at all. The rejection of the petitioner's request for recount has caused unrepairable loss and prejudice. According to the petitioner his request for recount was rejected on account of the Returning officer's close association and friendship with the said Chinnappa hegde, who is a close relative of respondent No. 1. The margin of difference between the votes secured by the petitioner and respondent No. 1 is hardly 83. It being rather very small, the recount was called for. viii) The petitioner was not well and he was suffering from fever and head-ache and, therefore, he was not in a position to attend the counting of votes. Before the declaration of the result of the election and after the closure of the counting the petitioner went to the place of counting and was present at the time of declaration of the result. Before the declaration of the result of the election and after the closure of the counting the petitioner went to the place of counting and was present at the time of declaration of the result. Hence, under the said circumstances, he prayed for re-inspection, re-scrutiny and recount and re- totalling of the votes polled in favour of respondents 1 to 5 and also in respect of the invalid votes and tendered votes. He also sought for a declaration that the election of the respondent No. 1 to the Assembly was null and void and also sought for a declaration that he was duly elected to the Assembly. ( 2 ) RESPONDENT No. 1 has denied all the allegations of the petitioner made in the election petition and resisted petition. ( 3 ) RESPONDENTS 2 to 5 have remained absent and ex-parte. ( 4 ) RESPONDENT No. 6, Returning Officer has also resisted the petition and denied the petition allegations. ( 5 ) THE following issues have been set down for trial: (1) Does the petitioner prove that the counting was held in two highly insufficient rooms and thus it was not possible for the petitioner or his agents to supervise and attend to the counting properly and that thus the counting that was done by the counting staff, was illegal and has seriously affected the result of the election? (2) Does the petitioner prove that on account of the insufficiency of the space, verification of the marks put by the voters on the ballot papers with accuracy and precision by the counting agents of the petitioner was impossible and that thus the counting is highly irregular, illegal and improper and has affected the result of the election? (3) Does the petitioner prove, as alleged in paragraph 11, that the counting was done in great haste and without proper light and the sorting out of the ballot papers was highly improper and opposed to rules and regulations and that thus the result of the election is affected. (4) Does the petitioner prove that the counting of the ballot boxes in the booths where only few votes had been polled, was taken up early and that the number of votes secured by each of the candidates in the said booths was not noted on the black board as required under the rules? (4) Does the petitioner prove that the counting of the ballot boxes in the booths where only few votes had been polled, was taken up early and that the number of votes secured by each of the candidates in the said booths was not noted on the black board as required under the rules? (5) Does the petitioner prove that the boxes of other booths were taken to the counter where the counting had already been finished and the said boxes were opened and the counting was continued and the votes secured by each candidate was not notified on the black board as soon as each round of counting was over and that the number of votes secured by each candidate was not also enclosed after the completion of the counting in respect of each booth? (6) Does the petitioner prove that immediately after the counting of the boxes in a booth where a few votes had been polled, before the next box was opened, the counting staff used to rush to the other tables where the counting was going on and the entire counting was done in an atmosphere of confusion and without any clarity of procedure and thus it has affected the result of the election? (7) Whether the appointment of chinnappa Hegde as a member of the counting staff and his participation in the counting has seriously affected the result of the election, as urged in para- graph Nos. 13 and 14 of the petkion? (8) Whether the petitioner proves that chinnappa Hegde was imposing his view on the counting staff while deciding the validity of the ballot papers and that he was responsible for the counting of votes cast in his favour, in favour of respondent No. 1? (9) Does the petitioner prove that a large number of valid votes cast in his favour were illegally rejected? (10) Does the petitioner prove that a large number of invalid votes cast in favour of respondent No. 1 were illegally treated as valid and counted in favour of respondent No. l? (11) Does the petitioner prove that the counting of votes in booth Nos. 119 and 120 was carried out in violation of the communication issued by the election Commission of India? (12) Does the petitioner prove that somehow the votes cast in favour of the petitioner were not taken into account at all? (11) Does the petitioner prove that the counting of votes in booth Nos. 119 and 120 was carried out in violation of the communication issued by the election Commission of India? (12) Does the petitioner prove that somehow the votes cast in favour of the petitioner were not taken into account at all? (13) Does the petitioner prove that the votes cast and counted do not tally with votes marked in the statutory forms? (14) Does the petitioner prove that his prayer for recounting made before the sixth respondent was illegally rejected? (15) Is the petitioner entitled to recounting? (16) Is the election of respondent No. l liable to be set aside? (17) Is the petitioner entitled to the declaration sought? (5a) My findings are :- issue Nos. 1 to 17: Negative. REASONS ( 6 ) THE main request in this case of the petitioner and his learned counsel Shetty is that the ballot papers should be reinspected, re-scrutinized and recounted. Before proceeding to discuss the evidence on record, it is necessary to bear-in-mind the principles laid-down by the Supreme Court while considering the question of recount. ( 7 ) LEARNED author Chawla in his book elections Law and Practice, Third Edition, page 155 has stated thus:"a re-count is not granted as a matter of right, but only on evidence of good grounds for believing that there has been a mistake on the part of the Returning officer. SHRADHA DEVI, v KRISHNA chandra PANT, A. I. R. 1982 S. C. 1569; (1982)3s. C. C. 389 (2 ). The Supreme Court has held that where the High Court has passed an order for re-count on mere speculation and the order is against the weight of evidence, the order cannot be legally supported. The order setting aside the election of the candidate originally elected and declaring another candidate to be elected should be set aside. P. M. NARAYAN v S. SEN- malai, A. I. R. 1980 S. C. 206. An election petition contained allegations about irregularities in the counting of votes. The ballot papers which were rejected totalled about 500, while the difference between the returned candidate and the election petitioner was about 800. Details necessary for obtaining re-count were not pleaded in the petition, nor was the material placed before the court. Rejection of the plea for the re-count by the High Court was held to be justified. The ballot papers which were rejected totalled about 500, while the difference between the returned candidate and the election petitioner was about 800. Details necessary for obtaining re-count were not pleaded in the petition, nor was the material placed before the court. Rejection of the plea for the re-count by the High Court was held to be justified. A. YOUNUS JUNJU v r. S. UNNI, A. I. R. 1984 S. C. 960, 963, para 7 (May ). "the author has further said on the same page as:"in an election petition claiming the relief of scrutiny and re- count on the allegation of mis-count, it is not the requirement of law that in respect of each ballot paper rejected as invalid, a specific averment must be made so as to identify the ballot paper and only those ballot papers that can be correlated to the allegations in the petition specifically and not generally shall be re-counted. SHRADHA DEVI v krishna CHANDRA PANT, A. I. R. 1982 S. C. 1969; (1982)3. S. C. C. 389 (2 ). "the author has further said at page 156 as :"re-COUNT cannot be ordered for the asking. The material facts must be adequately stated, and the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, an inspection of the ballot is necessary. The discretion in this behalf should not be exercised so as to enable the applicant to indulge in a roving inquiry. RAGHUBIR SINGH gillv GURCHARAN SINGH TEHRA, air. 1980 SC 1362. " ( 8 ) LEARNED counsel P. V. Shetty for the petitioner referred me to SMT. SUMITRA devi v SHEO SHANKAR PRASAD YADAV and OTHERS, A. I. R, 1973 S. C. 215. RAGHUBIR SINGH gillv GURCHARAN SINGH TEHRA, air. 1980 SC 1362. " ( 8 ) LEARNED counsel P. V. Shetty for the petitioner referred me to SMT. SUMITRA devi v SHEO SHANKAR PRASAD YADAV and OTHERS, A. I. R, 1973 S. C. 215. In paragraph 9 at page 217 it has been observed as:"in Jitendra Bahadur Singh v Krishna behari, (1970)1 SCR 852 = ( AIR 1970 SC 276 ) this Court observed that in view of the importance of maintaining the secrecy of the ballot papers, scrutiny can only be ordered if the election-petition contains an adequate statement of the material facts on which the petitioner relies, that is, the material facts disclosed must afford an adequate basis for the allegations; and, the election tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. "in paragraph 10 on page 217, Supreme Court has further stated as:"in the case at hand, the allegations in the election petition were vague and the petition did not contain n adequate statement of the material acts. The evidence adduced by the appellant to prove the allegations was found unreliable. No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers. A recound will not be granted as a matter of right but only on the basis of evidence of good grounds for 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. " ( 9 ) SRI. SHETTY then referred me to SASHI bhushan v BALRAJ MADHOK, A. I. R. 1972 S. C. 1251. It has been stated in paragraph 15 as:"the above observations succinctly bring out the circumstances under which an inspection can be ordered. The overriding test laid down there is the interests of justice. Facts naturally differ from case to case. Therefore it is dangerous to lay down any rigid test in the matter of ordering an inspection. It is no doubt true that a judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. Facts naturally differ from case to case. Therefore it is dangerous to lay down any rigid test in the matter of ordering an inspection. It is no doubt true that a judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. The allegations in support of a prayer for inspection must not be vague or indefinite; they must be supported by material facts and prayer made must be a bonafide one. If these conditions are satisfied, the Court will be justified in permitting inspection of ballot papers. Secrecy of ballot is important, but doing justice is undoubtedly more important and it would be more so, if what is in stake is the interests of the society. " ( 10 ) HE then referred me to SHRADHA devi v KRISHNA CHANDRA, A. I. R. 1982 s. C. 1569 wherein it has been stated that it is necessary in respect of each ballot paper rejected as invalid a specific averment must be so made as to identify the ballot paper and only those that can be correlated to the allegations in the petition specifically and not generally shall be recounted. The said decision further lays down at page 1570 as:"when a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegation is of improper rejection of valid votes which covered by the broad spectrum of scrutiny and recount because of miscount, petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. "he then referred me to ARUN KUMAR bose v MOHD. FURKAN ANSARI, A. I. R. 1983 S. C. 1311 which decision also lays down practically the same principle. ( 11 ) SRI. Hegde, learned counsel for respondent No. 1 referred me to BELIRAM v jai BEHARI LAL, A. I. R. 1975, S. C. 283. "he then referred me to ARUN KUMAR bose v MOHD. FURKAN ANSARI, A. I. R. 1983 S. C. 1311 which decision also lays down practically the same principle. ( 11 ) SRI. Hegde, learned counsel for respondent No. 1 referred me to BELIRAM v jai BEHARI LAL, A. I. R. 1975, S. C. 283. It has been clearly stated in the said decision as, '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 r. 63 (2 ). The application is thus not a proper application in the eye of law. It is further stated in the said case that if an application for recount is not supplemented by all the material facts on which the allegations of irregularity or illegality in counting are founded, it is liable to be rejected under rule 63 (2 ). It is further laid down in the said case as, 'since an order for recount touches upon the secrecy of the ballot, it should not be made lightly or as a matter of course. ' It is further stated that 'mere allegations that the petitioner suspects or believes that there has been improper reception, refusal or rejection of votes or there have been irregularities in the counting of ballot papers will not be sufficient to support an order of recount and inspection. ' In CHANDA singh v SHIV RAM VARMA and OTHERS, a. I. R. 1975 S. C. 403, Supreme Court has stated in clear terms as:"rule 63 of the Conduct of the conduct of Election Rules 1961 obligates the candidate to state 'the grounds on which he demands such recount. ' It is plain that a more 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 mischief 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. What is not reasonably grounded or seriously supported is unreasonable or frivolous. Suspicions of possible mischief 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 rerunning the course of counting. Victory by a few votes may certainly be a ground to fear unwitting 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 prying if recount of votes 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 however 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 courting. " ( 12 ) SRI. Hegde then referred me to S. Baldev Singh v Teja Singh Swatantra A. I. R. 1975, 693. It is laid down in the said case as : "the Court frowns upon frivolous and unreasonable refusals of recount by returning Officers who forget the mandate of Rule 63 that allowance of recount is not the exception and refusal is restricted to cases where the demand itself is 'frivolous' or 'unreasonable'. It is further laid down in the said ruling that in the absence of specific allegations in the petition and in the absence of satisfactory proof of those allegations even if made in the petition, the court should be very slow in ordering recount for the mere asking by the petitioner. ( 13 ) HE then referred me to RAM SURAT singh v HARISH CHANDRA MAHATO, air 1975 SC 711. ( 13 ) HE then referred me to RAM SURAT singh v HARISH CHANDRA MAHATO, air 1975 SC 711. It is laid down as :"inspection of ballot papers or their counter-foils is not to be allowed as a matter of course as such an order touches upon the secrecy of the ballot Such inspection can be allowed only if a good ground for the same is made out by the petitioner. Further more, the Court must be satisfied that for the purpose of deciding the case and doing complete and effectual justice between the parties it is imperatively necessary to order the inspection. "it further lays down that it is not permissible for the petitioner to fish out evidence under the cover of the Court's order. ( 14 ) THUS a review of the various rulings laid down by the Supreme Court makes it clear that the necessary allegations of the irregularity, illegality, mistakes or defects must be pleaded in the petition and the petitioner must place before the court some prima facie, acceptable evidence in support of the said contention. Making mere allegations in the petition without proper and satisfactory proof will not entitle the petitioner to recount. The court can order recount only when necessary allegations are made in the petition and when the petitioner has led prima facie evidence in proof of those allegations. Therefore, each case depends upon the peculiar facts involved in the case. Therefore, the court must find out first whether the necessary allegations regarding the irregularity or illegality or the mistakes or defects are pleaded by the petitioner in the petition. Then the court should also find out whether the petitioner has placed before the court satisfactory and prima facie evidence to prove those allegations made by him in the petition. Now, let me advert to the evidence adduced by the parties in this case in order to find out as to whether such clear allegations are made by the petitioner in the petition and whether the petitioner has placed before the court prima facie and satisfactory evidence in proof of those allegations made by him in the petition. ( 15 ) IT is an undisputed fact that the petitioner contested the 1985 Karnataka assembly Election from Shringeri constituency as Cong-I candidate. It is also undisputed that respondent No. 1 contested the said election as a Janatha Candidate, successfully. ( 15 ) IT is an undisputed fact that the petitioner contested the 1985 Karnataka assembly Election from Shringeri constituency as Cong-I candidate. It is also undisputed that respondent No. 1 contested the said election as a Janatha Candidate, successfully. It is also undisputed that respondents 2 to 4 contested the said election as independent candidates. It is also undisputed that respondent No. 5 contested the said election as a BJP candidate. ( 16 ) THE election took place on 5-3-85. The counting took place on 6-3-85 from 8 a. m. to 1. 30 p. m. The result of the election was announced at about 3-30 p. m. declaring the respondent No. l having secured the highest number of votes was elected to the karnataka Assembly from Shringeri constituency. ( 17 ) IT has come in the evidence of the petitioner, P. W. I and P. Ws. 2 to 6 and the evidence of R. W. 1, election agent of respondent No. 1 that R-1 secured 30,529 votes and the petitioner secured 30,446 votes. Thus there appears to be a difference of 83 votes between them. This is also borne out by Form No. 20, Ex. P6. ( 18 ) P. W. 1, the petitioner has made it clear in paragraph 3 of his evidence that he was suffering from cold, fever and cough, and that thus he could not attend the counting held on 6-3-85. Thus on his own evidence he was absent in the course of the counting and, therefore, he could not be credited with the knowledge of the things that might have happened in the course of the counting. He has, further, stated in paragraph 6 as, 'after the counting was over I went to the counting hall. I might have gone to the hall between 1-30 p. m. and 2-00 p. m. The result of the election had not been declared even when I went there. ' Thus the evidence of the petitioner would show that he does not know personally anything as to what happened or transpired hi the course of the counting. I might have gone to the hall between 1-30 p. m. and 2-00 p. m. The result of the election had not been declared even when I went there. ' Thus the evidence of the petitioner would show that he does not know personally anything as to what happened or transpired hi the course of the counting. Therefore, his evidence that the counting had taken place in a haphazard manner and there was insufficient space and that there was not sufficient light and that the people were moving about in the counting halls and that the number of votes secured by each candidate was not being announced after the ballot papers in the ballot boxes were counted or at the end of counting of the ballot papers of each booth, cannot be too readily accepted at all. He has stated in paragraph 7 that, " I came to know that chinnappa Hegde was moving in the counting halls and making enquiries as to how the position of the candidates was standing. He was particularly making enquiries about the position of respondent no. 1 Govinde Gowda. On account of chinnappa Hegde moving in the counting halls, I am of the opinion that the counting was affected. I suspect that he might be in league with the counting staff. ' Therefore, it is this undertaking suspicion lingering in the mind of the petitioner that must have made him to speak before the court that chinnappa Hegde was the villain of the peace and he was rather instigating the counting officers to count as many votes as possible in favour of respondent No. 1. On mere simple suspicion, a person cannot be branded as a person who interfered in the process of the election or in the process of counting. Therefore, his evidence is not of much help in the case. ( 19 ) SRI. Shivappa, P. W. 2 was the counting agent of the petitioner in hall No. 1. He stated that hall No. 1 measured 38 in length and 23' in width and that there was a platform in that room and it measured 23'x 10. According to him, room No. 2 was also very small in size. In the petition it is stated by the petitioner himself that hall No. 1 measured 38 1/2' x 30 1/2'. He stated that hall No. 1 measured 38 in length and 23' in width and that there was a platform in that room and it measured 23'x 10. According to him, room No. 2 was also very small in size. In the petition it is stated by the petitioner himself that hall No. 1 measured 38 1/2' x 30 1/2'. Even assuming that there was a platform measuring 23' x 10' still the space left would be 23 1/2' x 27 1/2'. Even excluding the area covered by the platform, can it be said that the area remaining in hall No. 1 was not sufficient to accomodate 12 tables and 24 benches?. After all the people that would be moving about in the counting hall would be the petitioner or other candidates election agents or this counting agents or a few persons who would have gone there to safe-guard the interest of their respective candidates. It is not as if the counting hall is a shandy. Therefore, the allegation of the petitioner and the evidence of Shivappa, P. W. 2 that the space in room no. 1 was highly congested and it was not possible for people to move about and it was not possible for the counting agents to observe or supervise the counting agents to observe or supervise the counting of the ballot papers, cannot be too readily accepted. He , further, stated that room No. 1 had got four windows in the western wall and two windows in the eastern hall. It had one main door in the eastern wall and also another door a little away from the main door in the eastern wall itself. According to him all the windows were completely shut and one of the doors was completely shut and the other door was half-closed. Admittedly the said building has got R. C. C. roofing. If all the windows and one of the two doors were completely closed then it would be as good as converting the hall into a Calcutta Black holes. Therefore, this allegation made by Shivappa in the evidence does not, in my opinion, sound truthful and acceptable at all. He, further, stated that there was one electric bulb in the hall No. 1 and the light was extremely dim and it was difficult for them to observe the ballot papers, in the course of the counting. Therefore, this allegation made by Shivappa in the evidence does not, in my opinion, sound truthful and acceptable at all. He, further, stated that there was one electric bulb in the hall No. 1 and the light was extremely dim and it was difficult for them to observe the ballot papers, in the course of the counting. He claims that he made a complaint in this connection to the election agent. He also stated that he made a complaint to the returning Officer about the area being very congested and about the dimness of the light after two rounds of counting were over. There is nothing to show that he made complaints to the Returning Officer or the asst. Returning Officer. It can be seen with advantage that an application for recount was made at 2 p. m. It is marked as Ex. P3. The application is a very short one. Therefore I would like to reproduce it. "sub: Objection filed for announcement of the result. I request you to conduct recounting of votes of 152-Sringeri Constituency as for the following reasons: (1) In Booth No. 77: 4 Ballot papers are less as per our counting Agent report (2) In Booth No. 138 shortage of one ballot paper is rejected is in order and in favour of congress (I ). Besides, generally it is understood some other ballot papers have been counted in the favour of Janatha though they were in favour of Congress (I ). Some invalid Ballot papers have been added to janatha. It is also understood that some of the Ballot papers not signed by the presiding Officer Margin is very low, there are lot of mistakes in counting also. Therefore, it is prayed that recounting may be ordered. "there is not even a whisper made in this application that there was only one electric bulb burning in the entire hall and the light was very dun and it was not possible to observe the scrutiny of the ballot papers or to observe the ballot papers. There is not even a whisper in the said application Ex. P3 that the room or the space in the halls was extremely congested and it was not possible for any one to move about and thus it was not possible for them to observe scrutiny. There is not even a whisper in the said application Ex. P3 that the room or the space in the halls was extremely congested and it was not possible for any one to move about and thus it was not possible for them to observe scrutiny. Even assuming for a moment that the space was small, the benches arranged for the counting agents to sit and watch the counting were adjoining the tables on which the counting of the votes was being done. This closeness of the bench to the tables would be more than sufficient for the counting agents to have a deeper and closer look at the ballot papers handled by the counting agents. Therefore, the absence of any mention in Ex. P3 about the lack of space and about the dimness of the light in Ex. P3 makes his evidence highly suspect, incredible and almost unacceptable. Ex. P2 is another application filed at 3 p. m. complaining about the interference of chinnappa Hegde in the course of the counting. Even in that application no complaint was made about the insufficiency of the space or about the light being dim. Therefore Ex. P2 makes his evidence in this connection rather highly unacceptable and rather not truthful. In Exs. P2 and P3 there is no mention about the windows having been enclosed or about the doors having been shut completely. Perhaps the idea of the windows being closed and the doors being shut must have occurred to the petitioner and the counting agents later on when they started making attempts to invent some grounds to justify their request for recount. Perhaps they saw the light of the day for the first time when the election petition came to be drafted and filed before the court. Sri. Shivappa further stated that all the three counting officials were putting the ballot papers in their respective trays almost simultaneously. When there are three counting officials, it is their duty to open the ballot papers and to find out in whose favour the ballot paper was marked and it is their duty to keep it in the tray meant for the respective candidate. Merely because the three officials at each table were doing the counting work simultaneously, it does not mean that they committed any serious irregularity or illegality or that it caused any prejudice to the petitioner or his counting agent. Merely because the three officials at each table were doing the counting work simultaneously, it does not mean that they committed any serious irregularity or illegality or that it caused any prejudice to the petitioner or his counting agent. P. W. 3-Balaraj himself had admitted in his evidence at paragraph 5 that all the three members of the counting staff were picking up the ballot papers simultaneously and keeping them in the trays reserved for the candidates. Even assuming that all the three counting officials were sorting out the ballot papers it does not mean that they committed any irregularity or illegality. Even the evidence of P. W. 4, A. S. Nagesh who was another counting agent of the petitioner and the evidence of Chandrashekara, P. W. 5 who was another counting agent of the petitioner would clearly go to show that the counting officials were picking up the ballot papers and were keeping them in the trays reserved for the particular candidate. Therefore, even if all the three counting officials were doing the counting work simultaneously, it cannot be taken as indicating that there was a mistake in the counting of the ballot papers. According to Shivappa, P. W. 2 he complained to the Returning Officer that all the three counting officials were simultaneously taking out the ballot papers and putting them in the trays and on that count it was not possible for them to observe the counting properly. According to him, the Returning officer said that the arrangement already made could not be undone and that he (Returning Officer) would see that the counting is over early. According to him, the returning Officer told them that they should have confidence in the counting staff and that if the petitioner or the petitioner's election agent demanded recounting, he would grant it. He has further stated that on account of this promise given by the returning Officer, he and other counting agents of the petitioner went on co-operating with the counting staff. There is nothing to show that they had made any such oral complaint either to the election agent, or i;o the Asst. Returning Officer or the Returning officer. Therefore, stating at this belated stage that he made a oral complaint, is nothing but an attempt to invent a story and to create some evidence in support of the said allegations. There is nothing to show that they had made any such oral complaint either to the election agent, or i;o the Asst. Returning Officer or the Returning officer. Therefore, stating at this belated stage that he made a oral complaint, is nothing but an attempt to invent a story and to create some evidence in support of the said allegations. According to him,'he and the other counting agents had jotted down the votes marked in favour of the petitioner and also the votes marked in favour of the petitioner but which were counted in favour of respondent No. 1. But, unfortunately, those slips have not seen the light of the day and they are not produced before the court. They are important pieces of evidence and especially they would become much more important because the petitioner has lost the election by a slight margin only. Therefore, the petitioner and his agents would have not failed to preserve those slips, more so because he has stated that he was taken by surprise on account of the defeat by such a small margin. Shivappa, P. W. 2 has further stated in paragraph 5 as, ' on the whole, in respect of the entire counting, we are of the opinion that 346 votes marked in favour of the petitioner Shammanna had been counted in favour of respondent No. 1 - Govinde- gowda. Out of the said 346 votes, 210 votes marked in favour of the petitioner Shamanna and counted in room No. 1, have been counted in favour of respondent No. 1. At my table, I found that 26 ballot papers marked in favour of petitioner shammanna were counted in favour of respondent No. 1. " it is really surprising that nearly after two years after the counting of the votes had taken place he is able to remember the figures even without a piece of paper to refresh his memory at this point of time. Therefore, under these circumstances, it becomes rather too difficult to accept his evidence. He stated that other counting agents had also given the slips on which they had jotted down the votes and on the basis of those slips he had given the said figures. He stated that in the second room 136 votes marked in favour of petitioner have been counted in favour of respondent No. 1 govindegowda. He stated that other counting agents had also given the slips on which they had jotted down the votes and on the basis of those slips he had given the said figures. He stated that in the second room 136 votes marked in favour of petitioner have been counted in favour of respondent No. 1 govindegowda. According to him, the counting agents in room No. 2 had also given the slips maintained by them. No such slips have been produced in this case. His evidence that 167 votes marked in favour of petitioner Shammanna have been treated as invalid wrongly cannot be too readily accepted. I am really unable to understand as to how he is able to remember this figure at this distance of time. His further evidence that 130 invalid votes which had been marked in favour of respondent No. 1 were treated as valid votes, cannot also be readily accepted for the above said reasons. He further stated that 182 votes marked in favour of the petitioner were rejected as invalid on the ground that those ballot papers did not bear the signature of the polling officer. These aspects, do not find a mention vividly and in specific terms in the applications Exs. P2 and P3. When Exs. P2 and P3 do not reel out these figures and when the slips in which the said figures had been jotted down are not produced, it becomes difficult and hazar to accept his evidence. He has admitted in paragraph No. 13 that his paternal grand-father and petitioner are co-brothers. Blood is always thicker than water. He is a very close relative of the petitioner. Further, he himself has admitted in paragraph No. 13 that the voting of the 1983 Legislative 'assembly election also took place in the same building. If the counting of the votes in the 1983 election took place in the said building and if the same was done satisfactorily, it is rather difficult to accept his evidence that the space available in the said two halls now in 1985 became extremely congested. He stated in paragraph 16 that the petitioner's election agent put the grievances in writing mentioning the said irregularities and tried to give it to the Returning Officer but the returning Officer did not accept the same. He stated in paragraph 16 that the petitioner's election agent put the grievances in writing mentioning the said irregularities and tried to give it to the Returning Officer but the returning Officer did not accept the same. If the Returning Officer did not accept the same, that must have remained either with this witness or the petitioner's election agent or the petitioner. That has not been produced in this case. It is not mentioned either in Ex. P2 or P3 that 'he Returning officer had refused to receive the application tried to be given at about 12-30 p. m. by the petitioner's election agent. He has stated in paragraph 17 as, ' in Ex. P5 I have noted down the figures after adding the figures given by each of the counting agents. After receiving the slips from the 20 counting agents I have prepared the consolidated statement Ex. P5. I have mentioned the names of all the 20 counting agents in Ex. P5. That consolidated statement which I had prepared was almost torn and spoiled and hence while coming from home to the Court, i prepared Ex. P5 on the basis of that consolidated statement. Ex. P5 does not bear my signature. I have not even put the date on ex. P5. In Ex. P5 the names of 20 counting agents are not mentioned but the names of only 12 counting agents are mentioned in it. I have prepared Ex. P5 on 20-4-87. That old torn and spoiled consolidated statement is not brought by me to the court today. Something had been written at the bottom of the paper Ex. P5 and it has been torn. As I was required to give evidence, I brought Ex. P5 for the purpose of refreshing my memory. I have not mentioned in Ex. P5 the total number of votes secured by each candidate. I had not mentioned in my slip the number of votes secured by each of the candidates. I do not know whether the other counting agents had mentioned in their slips the total number of votes secured by each of the candidates. I did not observe if the other counting agents had mentioned in their slips about the total number of votes secured by each of the candidates. After preparing a consolidated statement on 6-3-1985 I threw away all the slips given to me by all counting agents. I did not observe if the other counting agents had mentioned in their slips about the total number of votes secured by each of the candidates. After preparing a consolidated statement on 6-3-1985 I threw away all the slips given to me by all counting agents. It is false to say that I have given the figures like 346, 210 and 26 and 136 and 167 and 105 and 62 and 17 and 130 and 18 and 78 and 182 and 103 and 18 in para Nos. 5 to 8 falsely in order to support the case of the petitioner. These admissions of Shivappa would go to show that Ex. P5 came to be prepared by him for the first time on 20th April, 1987 while he has given his evidence on 22-4-87. It is a fresh and new slip of paper. Even that old and torn and soiled writing on the strength of which he claims to have prepared Ex. P5 has not been produced by him. Therefore, this very admission clearly goes to show that Ex. P5 had been prepared by Shivappa, P. W. 2 only for the purpose of this case and that too only a couple of days before he came to the court to give evidence. Therefore, the evidence of Shivappa, P. W. 2, in my opinion, is highly tainted, interested and unsatisfactory and it is incredible and far from being truthful. ( 20 ) P. W. 3 is also the counting agent of the petitioner in hall No. 2. His evidence about the insufficiency of the space and about the light being dim cannot be too readily accepted because he did not make any complaint about it in the initial stage of the counting. He claims to have made such a complaint only after two rounds were over. These complaints do not find a place either in Ex. P2 or in Ex. P3. There is nothing to show that he contemporaneously made any complaint to the Returning Officer, Asst. Returning Officer or the counting officials. Therefore his belated evidence that the space was highly insufficient and the light was dim, cannot be readily accepted. His evidence about the closure of the door and windows only merit to be rejected for the reasons that I have given for rejecting the evidence of Shivappa. Returning Officer or the counting officials. Therefore his belated evidence that the space was highly insufficient and the light was dim, cannot be readily accepted. His evidence about the closure of the door and windows only merit to be rejected for the reasons that I have given for rejecting the evidence of Shivappa. He also reels out some figures in paragraphs 6, 7, 8 and 9. It is really rather difficult to believe as to how he is able to remember these figures at this distances of time. He has admitted in paragraph No. 14 as, ' My own sister is married to the petitioner Shamanna. Petitioner's election agent Manjunath had appointed me as a counting agent of the petitioner, at 8-00 a. m. on 6-3-1985. Therefore, he is also closely related to the petitioner. According to him the Returning officer or the counting staff did not ask him to come to counting hall or table. According to him, he went and sat at the table as he pleased. I do not think that the Returning officer or the Asst. Returning Officer would advise him to sit at any table. The rules require that each counting agent should sit at a particular table and observe the counting from that particular table only. Therefore, his evidence cannot be too readily accepted. He has stated in paragraph 16 that, ' I complained to the A. R. O for the first time at about 12-00 noon orally. ' The very fact that he went on observing the counting without making any complaint till 12 noon makes his grievance in this connection highly suspect. He stated in paragraph No. 17 as,' At about 1-45 p. m. or 2-00 p. m. we arrived at the figures mentioned by me in paragraph Nos. 5 to 9 and 12. I told about these figures to our election agent. ' Therefore, the figures reeled out by him in the course of the evidence were invented for the first time after the counting was over and when the result of the election was about to be announced. Therefore, his evidence also is tainted, improbable, inconsistent and far from being truthful. ( 21 ) NAGESH, P. W. 4 was also the counting agent of the petitioner. He speaks about the insufficiency of the space and the light being dim and about the windows and doors being closed. Therefore, his evidence also is tainted, improbable, inconsistent and far from being truthful. ( 21 ) NAGESH, P. W. 4 was also the counting agent of the petitioner. He speaks about the insufficiency of the space and the light being dim and about the windows and doors being closed. These allegations have not been mentioned in Ex. P2 and P3. There is nothing to show that atleast he made a oral complaint to the counting officials or the asst. Returning Officer or the Returning officer contemporaneously. Exs. P2 and P3 do not show that any one of the counting agents made a grievance or complaint regarding these matters even when the said two applications were made either at 2 p. m. or 3 p. m. He has stated that he cannot say in which round of counting what number of votes marked in favour of the petitioner, were counted in favour of respondent No. 1. He has stated that he cannot say in which round of counting votes were treated as invalid on the ground that they did not bear the signature of the polling officer. He has admitted that he had not noted down the number of the said ballot papers. Therefore, his evidence also suffers from being discrepant and inconsistent. His evidence does not sound truthful and acceptable at all. Therefore, I am not inclined to accept his evidence at all. ( 22 ) P. W. 5 claims to be the counting agent of the petitioner in hall No. 2. His evidence about the insufficiency of the space and about the light being dim and about interference by Chinnappa Hegde and about the closure of the windows and doors cannot be too readily accepted because there is nothing to show that he made any complaint regarding this contemporaneously to the counting officials or the Asst. Returning officer or the Returning Officer and also on account of the fact that they do not find a place in Ex. P2 and P3. He has admitted in paragraph 11 of the evidence that he did not complain to the Returning officer about the light being dim. Returning officer or the Returning Officer and also on account of the fact that they do not find a place in Ex. P2 and P3. He has admitted in paragraph 11 of the evidence that he did not complain to the Returning officer about the light being dim. He has admitted in paragraph No. 8 as, ' I cannot say in what rounds of counting how many invalid votes marked in favour of respondent No-1 were treated as valid and how many ballot papers marked in favour of the petitioner were treated as invalid on the ground that they did not bear the signatures of the Presiding officer. The slips in which I had noted about the number of votes referred to in para 5, was handed over by me to Balaraju, P. W. 3. Out of memory only I have given the number of votes referred to by me in para 5. ' Further he has stated in paragraph No. 11 as, I did not complain to the Returning Officer or the asst. Returning Officer about the said irregularities and illegalities committed during the course of counting or about chinnappa Hegde's interference. ' Therefore, these various admission would clearly go to show that his evidence is far from being satisfactory and natural. His evidence does not appeal to me in the least. Therefore, I am not inclined to accept his evidence. ( 23 ) MANJUNATH, P. W. 6 was the election agent of the petitioner. He speaks about the insufficiency of the space and about the dimness of the light and also about the closure of the doors and windows. He also speaks about his request regarding recounting. He has stated in Paragraph No. 13 that the counting in the 1983 Assembly election took place in the very building and practically in the same halls. Therefore, his complaint that the space was insufficient cannot be accepted. He stated in paragraph no. 14 that, 'in the third round Janatha was leading. In the first round Congress-I might have been leading. In the second round the polling was almost equal between Congress-I and Janatha. I cannot say who was leading in fifth or sixth round of polling. I am not in a position to tell which candidate was leading in the fifth round of counting. In the first round Congress-I might have been leading. In the second round the polling was almost equal between Congress-I and Janatha. I cannot say who was leading in fifth or sixth round of polling. I am not in a position to tell which candidate was leading in the fifth round of counting. , This would go to show that the Janatha Party was leading atleast from therd round onwards. If it was so, then they would not have failed to complain in writing immediately if the light was really dim and if the space was insufficient and if the doors and windows had been closed. Omission to mention these complaints in Ex. P2 and P3 makes his evidence further suspect. He stated in paragraph 16 that at about 10 or 10-30 a. m. he have a complaint to the Returning Officer and asked the Returning Officer to give him an endorsement for having received the complaint. According to him the Returning officer did not give him any endorsement. According to him he does not have any document now to show that he had given any complaint in writing to the Returning Officer at about 10 or 10-30 a. m. To crown it all he has stated that he did not inform the petitioner about the giving of the said complaint. He has now tried to give a belated and unacceptable explanation that he did not make any serious attempt in the matter as the Returning Officer had promised him a recount, I do not think any officer of the cadre of Returning Officer would have promised well in advance that he would order recount. Recount does not depend on the asking by anybody. It depends upon various circumstances to be proved and established in each case. Therefore, his say that the Returning Officer had promised that he would order recounting well in advance, cannot be accepted. ( 24 ) R. W. 1, Chandrasekhar has given a vivid, clear and graphic description of all that went on in the process of counting. He has clearly stated that there were temporary arrangements of light made in both the halls. According to him in the first hall 6 or 7 tube lights and in hall No. 2,3 or 4 tube lights were burning. He has clearly stated that there were temporary arrangements of light made in both the halls. According to him in the first hall 6 or 7 tube lights and in hall No. 2,3 or 4 tube lights were burning. He also said that every window had got four shutters and and only the two lower shutters were kept closed the top two shutters in every window were kept open. According to him doors had not been closed at all. He has stated that counting went on properly and no irregularity or illegality was committed during the course of the counting. He was cross-examined by learned counsel p. V. Shetty at length but without any effect. He has stood the lengthy cross-examination very well. The entire reading of his evidence would go to show that what he has spoken before the court is truthful. His evidence, in my opinion, is acceptable. It does not suffer from any infirmity at all. Therefore, I am inclined to accept his evidence. ( 25 ) ANOTHER complaint that was made is that the counting was carried in two rooms and it had materially affected the result of the election. After all ours is a poor country which cannot afford to provide big and spacious halls for the purpose of counting. Merely because counting was carried on the two adjoining rooms, it cannot be said that there was no proper supervision by the returning Officer and the Asst. Returning officer. Any rule requiring that counting should be carried on in only one room, is not brought to my notice. Therefore, even the said argument also merits to be rejected. ( 26 ) THUS, the petitioner on the whole has failed to prove that the light was dim or that there was lack of space or that the counting agents were not in a position to observe the inspection or scrutiny of the ballot papers by the counting officials. The petitioner has failed to prove prima facie that any votes marked in his favour had been counted in favour of respondent No. 1 or to show that the valid votes marked in his favour were treated as invalid or to show that any votes which were invalid were treated as valid in favour of respondent No. 1. Learned counsel sri. P. V. Shetty got produced Exs. Learned counsel sri. P. V. Shetty got produced Exs. P7 to P19 to show that there was some difference between the number of ballot papers issued and the actual number of ballot papers. It does not tilt the balance in favour of the petitioner because it is not the case of the petitioner that the missing ballot papers were polled in his favour or as favour of any candidate. Further, on perusal thereof, no difference as contended by him is to be found. ( 27 ) LEARNED counsel Sri. P. V. Shetty argued that Chinnappa Hegde ought to have been examined by R-1 to disprove the case made out by P. W. 1. to P. W. 6. Chinnappa hegde cannot be considered to be a counting agent or agent of respondent No. 1. As can be seen from the evidence of P. Ws. 3 and 4 themselves, Chinnappa Hedge was only moving in the halls. The petitioner's election agent Manjunath himself has stated that he did not hear what Chinnappa Hegde told the counting officials. Therefore, in view of this, the evidence of P. Ws. 2 to 4 cannot be accepted. ( 28 ) SRI. Hegde then urged that chinnappa Hegde and the Returning Officer should have been examined by the petitioner. Law condemns one party examining another party as a witness. Therefore, it is not for respondent to disprove the allegations made by the petitioner by leading evidence. If the petitioner had made out a prima facie case and if R-l fails to examine the material witnesses then there might have been some force in the contention of Mr. Shetty. When the petitioner himself has failed to place sufficient and satisfactory material in proof of his allegations and when he has failed to prove the said allegations, the nonexamination of the Returning Officer or the counting agents by the respondent No. 1 cannot be made much of. Therefore, I do not think that any case for recount has been made out in this case. ( 29 ) NEITHER the petitioner nor his witnesses have spoken that the counting of the votes belonging to booths where only a few votes were polled, was taken up first and early. The petitioner has not placed any material to show that any irregularity or illegality had been committed in the counting of the votes. Therefore, my findings on issues Nos. The petitioner has not placed any material to show that any irregularity or illegality had been committed in the counting of the votes. Therefore, my findings on issues Nos. 1 to 14 are in the negative. ( 30 ) THE petitioner made a grievance that as the respondent No. 1 is alleged to have secured more than 90% of the votes in hannage and Alahalli polling stations, a recount ought to have been made by the returning Officer as per the instructions of the Election Commissioner. Unless there is some defect, illegality, irregularity or atleast a suspicion touching the counting, I do not think that a recount must be done by the returning Officer in respect of such polling stations where a candidate has secured more than 90% of the votes. Hence, Sri. Shetty's argument in this connection is rejected. ( 31 ) IN the result, the petitioner has failed to make out any case for setting aside the election of respondent No. 1. Therefore, my findings on issue Nos. 15 and 16 are also in the negative. ( 32 ) IN the result, the election petition is dismissed. The petitioner should pay the costs of Respondent No. 1 in this case and should bear his own. There will be no order as to costs regarding respondent No. 6. Petitioner should pay Rs. 500. 00 as costs to the respondent No. 1. The remaining amount of rs. 1500. 00 may be paid to the petitioner or his counsel. Writ Petition dismissed. --- *** --- .