I. Rama Rai v. M. Ramanna Rai — 1990 DIGILAW 260 (KER)

JUDGMENT K.G. Balakrishnan, J. 1. The petitioner had contested the general election to the House of the People (Lok Sabha) held on 22.11.1989 from No. 1 Kasaragod Parliamentary Constituency as a candidate of the Indian National Congress (Indira) Party, which was a constituent of the United Democratic Front. The United Democratic Front consisted of several other parties. The first respondent was a candidate supported by the Communist Party of India (Marxist) and this party was a constituent of the Left Democratic Front, the No. 1 Kasaragod parliamentary Constituency consisted of 7 legislative assembly segments. They are, Manjeswar, Kasaragod, Uduma Hosdurg, Thrikkarippur, Payyannur and Taliparamba. Polling in all these L. A. segments took place on 22.11.1989. The counting of votes started on, 26.11.89 and the result of the election was declared on 27.11.89. Out of the 7, 97, 296 votes polled the petitioner secured 3, 57, 177 votes and the first respondent secured 3,58,723 votes. Thus, the first respondent was declared as duly elected by a margin of 1546 votes. The petitioner alleges that he had a fair chance of winning the election and he would contend that there were serious irregularities in conducting the election and that the first respondent resorted to various corrupt practices and this had materially affected the result of the election. Several allegations are enumerated in the petition and the first respondent raised a preliminary B objection contending that the allegations contained in the election petition are vague and inaccurate and as the petitioner did not furnish sufficient and full particulars regarding the alleged corrupt practices, the pleadings are liable to be struck out. The preliminary objection was heard and this court by order dated 18th June, 1990 held that the allegations in Para.8 to 10 except 19, 21, 22 and 23 are liable to be struck out. So, at present we are concerned with the averments raised in Para.19, 21, 22 and 23. 2. In Para.19 of the petition the petitioner contended that as per the final result sheet of the Hosdurg L. A. segment the petitioner secured 57, 342 votes and the respondent secured only 50,037 votes. But by manipulation in form No. 20 Part II the first respondent was shown to have secured 59.937 votes (which is in excess of 9900 votes) whereas the petitioner was shown as having secured 57,342 votes from the Hosdurg L. A. segment. But by manipulation in form No. 20 Part II the first respondent was shown to have secured 59.937 votes (which is in excess of 9900 votes) whereas the petitioner was shown as having secured 57,342 votes from the Hosdurg L. A. segment. Therefore, the petitioner alleges that correct entries have not been made in the final result sheet. 3. In Para.21 of the petition the petitioner contended that in polling station No. 7/86 of Payyannur L. A. segment the ballot papers to be found in the ballot box is shown as 980. However, in the final result sheet the figure shown is 920. It was also alleged that the presiding officers kept with them more than 50 signed ballot papers at a time. 4. In Para.22 of the petition it is alleged that in polling station No. 4 of Kasaragod L. A. segment the number of total ballot papers used was 975 and the ballot papers received by the polling station were also 975. But in the final result sheet it was shown that the total ballot papers received in the polling station are 1260. This is also a later manipulation. 5. In Para.23 the petitioner contended that in several polling booths the votes found in the ballot boxes were more than the actual votes polled. In polling booth. No. 37 of Payyannur L. A. segment the total number of votes polled was 663. However, 673 votes were counted. In polling station No. 32, 57, 102, 110 and 43 of Payyannur segment and in booth Nos. 131, 118, 103, 43, 84, 34, 75, 30, 23, 19 and 17 of Hosdurg segment there were excess or shortage in the number of votes, and in booth No. 9 of Hosdurg segment there was shortage of ballot papers and according to the petitioner this was due to the manipulation. 6. The first respondent contested the proceedings. Except the preliminary objection the first respondent has not filed any written statement. The learned counsel for the first respondent contended that after the striking out of Para.8 to 30 except 19, 21, 22 and 23, the petition itself is not maintainable. The following issues were formulated for consideration. "1) Whether the election petition as now stands i. e. after striking out Para.8 to 30 excluding Para.19, 21, 22 and 23, as such is maintainable? The following issues were formulated for consideration. "1) Whether the election petition as now stands i. e. after striking out Para.8 to 30 excluding Para.19, 21, 22 and 23, as such is maintainable? 2) Whether the allegations contained in Para.19 of the election petition are true? 3) Whether the averments made in Para.21, 22 and 23 are true? If the allegations made in Para.21, 22 and 23 are true, whether they have materially affected the result of the election? 4) Whether a prayer for recounting is necessary to be incorporated in the election petition itself to grant such a relief? Whether recounting be ordered in the facts and circumstances of the case? 5) Whether the election of the returned candidate is liable to be declared void? 6) Whether the applicant is entitled to be declared elected? 7) To what other relief, if any, the applicant is entitled? 8) What is the order as to costs?" On the petitioner's side PWs 1 to 8 were examined and Exts. P1 to P14 were marked. On the side of the respondents the first respondent was examined as RW 1 and Exts. R1 series were marked. 7. Issue No. 1: - The counsel for the respondents contended that the present election petition is not maintainable for the reason that the averments in the petition do not constitute any of the grounds mentioned in S.100 of the Representation of Peoples Act, 1951. In the election petition six reliefs have been prayed for by the petitioner. Under Relief No. 1 the petitioner seeks to declare the first respondent's election as void and under relief No. 2 the petitioner seeks that he be declared as the duly elected candidate and in relief No. 3 to 6 the petitioner in fact included the various grounds for obtaining the first two reliefs. It has been stated under relief No. 3 that this Court should hold that the procedures adopted by the returning officers and the polling officers are illegal and violative of the Orders issued by the Election Commission of India and the guidelines and provisions of law on the subject and therefore the result is vitiated Under S.100(1) (d) any non compliance with the provision of the Constitution or of the Act or Rules or orders made under the Act is a ground for declaring the election void. However, if the returning officers or the polling officers violated any of the orders or guidelines issued by the Election Commission that is not a ground under S.100(1)(d)(iv) to declare an election to be void. Reliefs stated as 4 and 5 also related to some of the pleadings which were struck out by this Court. Even though the petitioner has mentioned these matters as reliefs in the petition, the allegations in Para.19, 21, 22 and 23 are sufficient to give rise to a cause of action and therefore I hold that the petition as such is maintainable. Issue number 1 is found accordingly. Issue No. 2: - In paragraph No.19 of the petition it is alleged that the petitioner secured 57,342 votes from the Hosdurg L. A. segment of the Kasaragod Parliamentary Constituency and that the first respondent secured only 50,037 votes, and because of some manipulation the figure 50,037 was later shown as 59.937 in the final result sheet and on this ground the election of the first respondent is to be declared void. It is pertinent to note that the petitioner has not given the details as to the manner in which the so called manipulations were done by the officers. The petitioner simply asserted that the 1st respondent secured only 50,037 votes. The petitioner produced certain certified copies to substantiate these allegations Ext. P4 is the certified copy of Form 20 Part II alleged to have been issued to the petitioner. Therein it is shown that the first respondent secured 50,037 votes from the Hosdurg L. A. segment of the Kasaragod Parliamentary Constituency. The other documents produced by the petitioner himself would show that this plea is incorrect and that the petitioner is trying to build up a case out of the typographical error that crept in Ext. P4 certified copy. Even in the document produced by the petitioner. i.e. Ext. P4(a) it is shown that the first respondent secured 59,937 votes from the Hosdurg L. A. segment. The explanation of the petitioner regarding this is that the back records were subsequently manipulated by the officers to suit the final figure of 59,937. Two witnesses were also examined to prove this fact. One of the counting agents of the petitioner was examined. The explanation of the petitioner regarding this is that the back records were subsequently manipulated by the officers to suit the final figure of 59,937. Two witnesses were also examined to prove this fact. One of the counting agents of the petitioner was examined. He deposed that the total number of votes secured by the first respondent was announced by the Assistant Returning Officer and that he heard that the first respondent secured only 50,037 votes. A perusal of the relevant rules regarding polling and counting clearly show that this sort of mistake would not have happened and if so happened the counting agents of the petitioner could have very well noticed the discrepancy. R.44 of the Conduct of Elections Rules, 1961 deals with the manner in which sealing of ballot boxes is to be done after the poll. The sealing of the ballot box is done in the presence of the polling agents of the respective candidates. The polling agent can affix his seal. The polling agent also will be allowed to inspect each of these boxes. R.45 says that the presiding officer shall at the close of the poll prepare a ballot paper account in form 16 and enclose it in a separate cover with the words "Ballot Paper Account" superscribed thereon. R.45(2) says that the presiding officer shall furnish to every polling agent present at the close of the poll a true copy of the ballot paper account after obtaining a receipt from the said polling agent and he shall also attest it as a true copy. R.55 deals with the scrutiny and opening of the ballot boxes for the purpose of counting. Before any ballot box is opened at a counting table, the counting agent present at that table shall be allowed to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it is intact. The returning officer shall satisfy himself that none of the ballot boxes has in fact been tampered with. The returning officer shall satisfy himself that none of the ballot boxes has in fact been tampered with. R.56 deals with the manner in which counting is to be done and R.56(7) says that after the counting of all ballot papers contained in all the ballot boxes used at the polling station has been completed, 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 the returning officer shall make the entries in a result sheet in form No. 20 and announce the particulars. From R.45 it is clear that the agent of the candidate will get the particulars of the total ballot papers received and the total ballot papers unused and also the number of ballot papers, if any, cancelled. Form 16 Part I will also show that number of tendered ballot papers. Item 5 in form 16 part I will also show the total number of ballot paper to be found in the ballot box. Form 16 Part II is to be filled up at the time of counting and R.56(7) states that the counting supervisor shall fill in Part II of form 16 and the same shall be signed by the counting supervisor as well as the returning officer. From the entries in form 16 Part II the counting agent of the candidate would be in a position to know the number of votes secured by each candidate and also the total number of ballot papers rejected. If any discrepancy was noticed between the total number of votes polled and the total number of votes counted, that also will be entered in form 16 Part II. It is the duty of the counting agent to get form 16 Part II signed by the counting supervisor as well as the returning officer. The contention of the petitioner is that his counting agent did not get form 16 Part II duly signed by the counting supervisor and the Assistant Returning Officer. There is no case that the petitioner has ever filed any objection before the Assistant Returning Officer regarding the non observance of R.56(7)(a) of the Conduct of Elections Rules, 1961. That fact is not specifically mentioned while narrating the ground in Para.19 of the petition. There is no case that the petitioner has ever filed any objection before the Assistant Returning Officer regarding the non observance of R.56(7)(a) of the Conduct of Elections Rules, 1961. That fact is not specifically mentioned while narrating the ground in Para.19 of the petition. The Rules relating to polling and counting would clearly show that the agent of the petitioner would have been in a position to show that the first respondent secured only 50,037 votes from the Hosdurg L. A. segment. Form 16 Part II issued to the counting agent of the petitioner was not produced by the petitioner. Without producing this document the counting agents were examined in this case to prove the fact that the first respondent got only 50,037 votes from the Hosdurg L. A. segment. There is absolutely no evidence to prove that the officers who were on election duty tampered with the entries in form 16 and the figure 50,037 was corrected. 8. The first respondent has produced a list of votes secured by him from each polling booth in Hosdurg segment. The entries given therein tally with the entries mentioned in the certified copies produced by the petitioner. The petitioner could not prove that any of these entries is wrong and that the first respondent secured only lesser number of votes than what has been shown therein. The petitioner has not mentioned as to the manner in which the alleged tampering of figures is done. It is not mentioned as to how did the petitioner come to know of the alleged tampering of figures. It is important to note that even though he filed a petition for recounting before the returning officer, this was not mentioned as a ground for recounting. The counsel for the first respondent pointed out that this mistake is found only in the certified copies produced by the petitioner and the certified copy issued to the first respondent does not contain any such mistake. The genuineness of the certified copy produced by the petitioner was challenged by the respondents. In spite of that fact, the petitioner has not summoned the original document and the petitioner has also not cared to summon the returning officer as a witness. After filing the election petition the petitioner had taken out summons to produce the entire records relating to the election. In spite of that fact, the petitioner has not summoned the original document and the petitioner has also not cared to summon the returning officer as a witness. After filing the election petition the petitioner had taken out summons to produce the entire records relating to the election. Thereafter the first respondent filed a preliminary objection and at that point of time it was suggested by the court that the petitioner can take further steps at a later stage for the production of the records. Thereafter the petitioner did not take any steps even when the genuineness of Ext. P4 series was challenged by the respondents. There is nothing in evidence to show that the entries in form 16 in respect of the votes secured by the first respondent from Hosdurg segment were tampered with. There is also no evidence to show that the first respondent secured only 50,037 votes. So, there was no improper reception, refusal or rejection of any vote or there was non compliance of any of the provisions of the Constitution or of the Act. Therefore, I hold that the allegations contained in Para.19 of the petition are not true and the election of the first respondent is not liable to be declared void. 9. Issue No. 3 In Para.21, 22 and 23 of the election petition the petitioner has pointed out certain irregularities. In some cases at the time of counting there was missing of votes and the total number of votes counted was less than the number of votes polled. One instance has been mentioned in Para.23 of the petition. It is mentioned that in booth No. 39 of Payyannur segment 666 votes alone were polled. But at the time of counting it was found that there were 673 votes. Thus it is seen that 7 votes were found in excess of the total number of votes polled. The petitioner has not averred in the petition that this was as a result of the malpractice done by the first respondent. It is also not specifically averred that this excess number of 7 votes has materially affected the result of the election. The first respondent while giving evidence explained that on his enquiry he came to know that the presiding officer put 7 tendered votes into the ballot box without keeping the same in a separate cover as envisaged under the Rules. The first respondent while giving evidence explained that on his enquiry he came to know that the presiding officer put 7 tendered votes into the ballot box without keeping the same in a separate cover as envisaged under the Rules. Under R.42(4) the presiding officer instead of putting the tendered ballot paper into the ballot box shall place it in a cover specially kept for the purpose and the number of tendered votes also should be separately shown in form 16 part I. This is one possibility of the excess number of votes being found in the ballot box. Any way the petitioner has no case that this was a corrupt practice done at the behest of the first respondent and it has materially affected the result of the election. 10. In Para.21 and 22 the petitioner has mentioned some instances where some votes were found missing. The list submitted by the petitioner would show that there were only very few instances. One reason that could be attributed to this discrepancy is that some voters might have taken the ballot papers out of the polling booth without the same being cast in the ballot box. There is no averments or evidence to the effect that this has materially affected the result of the election. 11. Eight witnesses were examined on the side of the petitioner. PWs 3, 4, 7 and 8 spoke about the various discrepancies found in respect of the number of votes counted and the number of votes polled. PW 3 stated that in polling booth No. 43 of Payyannur L. A. segment, as per the ballot paper account 966 ballot papers were to be found in the ballot box but at the time of counting 969 votes were found in the ballot box. Ext. P7(f) is Part I of Form 16 produced by the petitioner, in respect of polling booth No. 43 of Payyannur L. A. segment. Ext. P7 (f) shows that the ballot papers to be found in the ballot box are 966. It is not known as to how many votes were counted in respect of polling booth No. 43. PW 3 would contend that he was not served with Part II of Form 16. 12. Ext. P7 (f) shows that the ballot papers to be found in the ballot box are 966. It is not known as to how many votes were counted in respect of polling booth No. 43. PW 3 would contend that he was not served with Part II of Form 16. 12. PW 7 was a counting agent of the petitioner in the counting station of Payyannur L. A. segment and the deposed that there were excess of votes from polling Booth No. 43 of Payyannur L. A. segment. Except the oral testimony of PWs 3 and 1, no corresponding document is produced in this regard. It is not known as to what was the total number of votes counted. The petitioner should have summoned the original records to show that there were excess of votes. The petitioner has also not cared to produce original Form 16 Part II to show at least that there were excess number. Therefore, the evidence of PWs 3 and 7 alone is not sufficient to hold that there was discrepancy between the number of votes polled and the number of votes counted. 13. PW 4 is stated to be a counting agent of the petitioner. He deposed that at the time of counting of votes from Payyannur L. A. segment he was present and 793 votes were counted from booth no. 32 of Payyannur L. A. segment. According to this witness there should have been 798 votes and 5 votes were missing. The relevant Form 16 Parts I and II are not produced by the petitioner. The petitioner has also not cared to produce the original documents before the Returning Officer to prove that from polling booth No. 32 of Payyannur L. A. segment. 793 votes were counted whereas it should have been 798 votes. As the relevant documents are not produce, it is not possible to rely on the oral testimony of PW 4 to hold that there was discrepancy. 14. PW 8 was accounting agent in the Payyannur L. A. segment. In the chief examination he claimed that he was the counting agent of the petitioner but in the reexamination he admitted that he was the counting agent of the 5th respondent. PW 8 deposed that at the time of counting he had raised an objection that in respect of booth Nos. In the chief examination he claimed that he was the counting agent of the petitioner but in the reexamination he admitted that he was the counting agent of the 5th respondent. PW 8 deposed that at the time of counting he had raised an objection that in respect of booth Nos. 102 and 110 of Payyannur L. A. segment the total number of votes polled was not tallying with the total number of vote's found in the ballot box and that he demanded a recounting. PW 8 has no case that he filed written petition, for recounting. The counting officer told PW 8 that he should file a petition before the Returning Officer. But, he did not file any such petition. The evidence of PW 8 cannot be accepted to hold that there were irregularities in the counting. 15. The petitioner has produced various documents ranging from Exts. P1 to P14. Many of these documents are not satisfactorily proved by examining competent witnesses. The petitioner has produced only Part 1 of Form 16. The various counting agents who received Part 1 of Form 16 were not examined. The petitioner has not summoned the original to prove that there were discrepancies between the number of votes polled and the number of votes counted. The documents produced by the petitioner are inadequate and no reliance can be placed on these documents. The certified copies produced by the petitioner admittedly contain wrong entries and the correctness of these entries was challenged by the Ist respondent. It was the duty of the petitioner to summon the originals to prove his case. Therefore, If hold that the averments in Para.21, 22 and 23 are not proved and the petitioner failed to establish that the result of the election was materially affected. 16. Issue No. 4 The learned counsel for the Ist respondent pointed out that the petitioner has not specifically prayed for recounting of votes and, therefore, such a prayer cannot be entertained. The petitioner's counsel submitted that it is not necessary that the prayer for recounting should be B stated in the petition as it is only an ancillary relief. S.98 of the Representation of the People Act, 1951 says that; "At the conclusion of the trial of an election petition the High Court shall make an order. The petitioner's counsel submitted that it is not necessary that the prayer for recounting should be B stated in the petition as it is only an ancillary relief. S.98 of the Representation of the People Act, 1951 says that; "At the conclusion of the trial of an election petition the High Court shall make an order. (a) dismissing the election petitions; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected". The prayer for recounting is only an ancillary relief and this need not be specifically mentioned in the election petition. However the petition by adducing satisfactory evidence must establish that there are grounds for ordering recounting. 17. The Supreme Court in various decisions has succinctly held that the recounting could be allowed only under exceptional circumstances. The prayer for recounting is only an ancillary relief and this need not be specifically mentioned in the election petition. However the petition by adducing satisfactory evidence must establish that there are grounds for ordering recounting. 17. The Supreme Court in various decisions has succinctly held that the recounting could be allowed only under exceptional circumstances. In Bhabhi v. Sheo Govind ( 1975 SCR 202 ) the Supreme Court held that the following conditions are imperative before a Court can grant inspection or sample inspection of the ballot papers: "(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 allegations 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 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 (5) 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" The Supreme Court in N. Gopal Reddy v. B. Krishnamurty (AIR 1987 Supreme Court 831) held that : "When a general recount and scrutiny of all the ballot papers is directed by the High Court, it would be unjust and unreasonable and contrary to the will of the electors, to deny benefit of valid votes cast in favour of the returned candidate or to ignore invalid votes counted by the Returning Officer as having valid votes in favour of the unsuccessful candidate and to set aside the election of the returned candidate. The purpose and object of the election law is to ensure that only that person should represent the constituency who is chosen by the majority of the electors. This is the essence of democratic process". The purpose and object of the election law is to ensure that only that person should represent the constituency who is chosen by the majority of the electors. This is the essence of democratic process". The same view was held in K. K. Shamsudeen v. K. A. M. M. Mohindeen (AIR 1989 Supreme Court 640), N. Narayanan v. S. Semmalai (AIR 1980 Supreme Court 206), D. P. Sharma v. Commr, and Returning Officer (AIR 1984 Supreme Court 654), Hari Ram v. Hira Singh(AIR 1984 Supreme Court 396), Jagjit Singh v. Kartar Singh (AIR 1966 Supreme Court 773), Ram Sewak v. H. K. Kidwai (AIR 1964 Supreme Court 1249), Beliram Bhalaik v. Jai Beharilal Khachi (1975) 4 SCC 417 ) and Baldev Singh v. Teja Singh (1975) SC R.381). From the above decisions it is well established that in order to obtain a recount there must be proper allegations in the election petition indicating the precise material on the basis of which it could be urged, where no such material is placed before the court and the discrepancies pointed out by the petitioner are insignificant and it may not materially affect the result of the election, no recount can be ordered by the court. An order of inspection may not be granted as a matter of course having regard to the insistence of secrecy of the ballot papers and the court would be justified in granting an order of inspection only if there are adequate statement of the material facts on which the petitioner relied in respect of his prayer for setting aside the election. An order for inspection of ballot papers cannot be granted to support vague pleas unsupported by material facts and the petitioner may not be given an opportunity to have a, "Fishing expedition". A mere allegation that the petitioner suspects or believes that there has been an improper reception or rejection of votes will not be sufficient to support an order for inspection. 18. In the instant case the petitioner seeks for recounting of ballot papers of Hosdurg and Payyannur L. A. segments. As regards Hosdurg L. A. segment the contention of the petitioner is that the 1st respondent secured only 50,037 votes shown in the final result sheet and the same could be proved by recounting. 18. In the instant case the petitioner seeks for recounting of ballot papers of Hosdurg and Payyannur L. A. segments. As regards Hosdurg L. A. segment the contention of the petitioner is that the 1st respondent secured only 50,037 votes shown in the final result sheet and the same could be proved by recounting. I have already found that there is nothing in evidence to show that the 1st respondent secured only 50,037 votes from the Hosdurg, L. A. segment. The documents produced by the petitioner are not sufficient to substantiate that pleading. It is also important to note that the petitioner had no such case at the time when he filed the application for recounting. Ext. P8 is the office copy of the petition submitted by the petitioner for recounting of votes. In Ext. P8 the petitioner has alleged that there were some malpractices in the matter of counting at Thaliparamba L A. segment. In Ext. P8 he has not mentioned the nature of the malpractice that had allegedly taken place in Thaliparamba L. A. segment. He only mentioned that the officials who participated for counting work had shown some prejudice to the counting agents of the petitioner and that the objections raised by the petitioner's counting agents were not heeded by the officials. The nature of the objections raised by the petitioner's counting agents is not mentioned in Ext. P8. It is important to note that when the petitioner gave Ext. P8 application for recounting on 27-11-1989, no objection was raised regarding of votes at Hosdurg L. A. segment and at Payyannur L. A. segment. It is quite possible that the petitioner might have been aware of the number of votes secured by himself and the 1st respondent from Hosdurg L. A. segment and the entries in the Final result sheet would have been known to the petitioner. Even then no objection was raised regarding that at the time when Ext. P8 petition was filed. Ext. P12 is another application submitted by the petitioner on 27.11.89 wherein he made a request for recounting of votes of Manjeswar, Hosdurg and Udma L. A. Segments. In Ext. Even then no objection was raised regarding that at the time when Ext. P8 petition was filed. Ext. P12 is another application submitted by the petitioner on 27.11.89 wherein he made a request for recounting of votes of Manjeswar, Hosdurg and Udma L. A. Segments. In Ext. P12 the petitioner alleged that some fraud and malpractices were committed by the officials on duty at the counting centre and his counting agents repeatedly gave objections regarding the fraud and malpractices and the officials turned a deaf ear to such complaints and behaved partially. The nature of fraud and malpractices ate not mentioned in Ext. P12. The petitioner has also not produced any documents to show that his counting agents had raised any objection at the time of counting. Ext. P13 is another petition wherein he alleged that the Returning Officer had not passed any orders in his petition for recounting till 29.11.89. There is nothing in evidence to show that the Returning Officer failed to pass an order in the petition submitted by the petitioner. Ext. P14 is the order passed by the Returning Officer. The order is dated 27.11.89. There is nothing is evidence to show that Ext. P14 order was passed by the Returning Officer subsequently. 19. I have dealt with in detail regarding the discrepancies pointed out by the petitioner between the number of votes polled and the number of votes counted. The discrepancies found, if any, and not of serious consequences. It is not possible to assume that there was any fraud or malpractice in the process of conduct of the election. There is also nothing in evidence to show that there was improper rejection of any valid vote or improper acceptance of any invalid votes. PW 2 one Mammu was examined to prove that he had submitted a petition to the presiding Officer alleging that there was some malpractices by voters. Ext. P9 is the letter wherein he] stated that he had submitted a complaint to the Returning officer. The original petition is not produced before Court and the Returning Officer also was not examined by the petitioner to speak about the petition submitted by PW 2. The gist of the allegation is that in booth No. 38 of Payyannur L. A. segment there was impersonation by some voters and some muslim voters were threatened by others and they were not allowed to cast their votes. The gist of the allegation is that in booth No. 38 of Payyannur L. A. segment there was impersonation by some voters and some muslim voters were threatened by others and they were not allowed to cast their votes. The names of the persons who were threatened are not mentioned in the complaint or in the election petition. It is also not mentioned as to who committed impersonation. The evidence of PW 2 and Ext. P9 series do not substantiate the petitioner's case. The allegations in the petition and allegations contained in the various complaints submitted by the petitioner are not sufficient to hold that the petitioner is entitled to have a recounting. 20. Issues 5 to 8: - As the petitioner has not proved any of the grounds for which the election of the 1st respondent could be declared void, the election petition is dismissed under S.98 (a) of the Representation of the People Act, 1951. The petitioner is liable to pay costs to the 1st respondent which I fix at Rs. 2,000/-. The substance of the decision shall be communicated to the Election Commission and the Speaker of the Lok Sabha. An authenticated copy of the judgment shall be sent to Election Commission at an early date.