M. S. PARIKH, J. ( 1 ) IN this Election Petition under Secs. 80 and 80-A read with Secs. 100 and 101" of the Representation of People Act, 1951 (for short the Act) the petitioner has challenged the election of Gujarat State Assembly for 101 Vadgam Assembly constituency held on 20. 2. 1995 by praying for a relief of recounting of the votes cast in election and a further relief of declaration that the said election is void and in alternative to declare the petitioner as elected in the said election from the aforesaid constituency. ( 2 ) THE allegations on which the petitioner has claimed aforesaid reliefs may briefly be reproduced from the petitioners election petition :the petitioner being a registered voter No. 354/83 x 188 in 98 Deesa Assembly constituency and being a member of Scheduled Caste (Chamar by caste) contested the election as one of the candidates. The date of the poll was 28. 2. 1995 and the date for counting of votes was 11. 3. 1995. The result declaring the respondent No. 1 elected was declared on 12. 3. 1995. ( 3 ) IT is the case of the petitioner that the petitioner was contesting the aforesaid election as an independent candidate out of the 10 contesting candidates. The respondent no. 1 who was the returned candidate was nominated by Bharatiya Janta Party and the respondent No. 2 was nominated as a candidate of the Indian National Congress. The respondent No. 3 was nominated as a candidate by Bahujan Samaj Party. The respondent no. 4 was nominated as a candidate by Janata Dal. The respondent No. 5 was nominated as a candidate by Doordarshi Party and the respondent No. 6 was a candidate of samajvadi Janata Party. The rest of the respondents contested the election as independent candidates. The result declared shown the following number of votes secured by each of the candidates: (1) Ramjibhai Jivabhai Parmar (Respondent No. 1) 33,762 (2) Daulatbhai Chellaram Parmar (Petitioner) 32,662 (3) Mukulbhai Jivrambhai Parmar (Respondent No. 2) 26,231 (4) Dahyabhai Chelabhai Bhavani (Respondent No. 3) 2,871 (5) Babulal Gandalal Bidja (Respondent No. 4) 1,307 (6) Karsanbhai Lavjibhai Rathod (Respondent No. 5) 972 (7) Dalpatbhai (Respondent No. 6) 617 (8) Pravinchandra Somabhai Chorsiya. (Respondent No. 7) 949 (9) Deepakbhai Dahyabhai Parmar (Respondent No. 8) 918 (10) Nanjibhai Somabhai Parmar (Respondent No. 9) 801 ( 4 ) THE Returning Officer had declared 2428 votes as invalid and 26 votes as missing. It is the case of the petitioner that as per the result declared by the Returning Officer the petitioner has lost by margin of 1100 votes only. The petitioner has challenged the aforesaid election on the ground that the result of the election has been materially effected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void as well as on the ground of non-compliance with the provisions of the Act and the Conduct of Election Rules, 1961, hereinafter referred to as the Rules, as well as the orders and directions given by the Election Commission from time to time. Facts in this respect have been narrated in paras. 6 and onwards of the petition. The place for counting of votes for the aforesaid 101 Vadgam Assembly Constituency was notified at the workshop of Industrial Training Institute at Palanpur, a District Headquarter of banaskantha District. It was a ground floor hall approximately admeasuring 39 x 39. In the said room a platform of the size of approximately 18 x 10 was raised for a stage of the Returning Officer and his assistants and in the remaining space 15 small tables of 6 length were kept for the purpose of counting the votes. The raised platform was nearer to the entry door of the room. On the right hand side of the platform table nos. 1, 2 and 3 were placed adjoining each other. On one side of the aforesaid tables, there were chairs for Counting Supervisors and his Assistants and on the opposite side there were benches for counting agents with a net placed in between; Similar arrangements were also made for other tables, viz. tables nos 4 to 15. Only one bench for the counting agents was provided for each table and such bench was 1. 5 in height, 5 in length and 1. 25 in width. This could hardly be said to be proper sitting arrangements for 10 counting agents for 10 candidates. Same was the position with regard to table nos. 10, 11, 12, 13, 14 and 15. 5 in height, 5 in length and 1. 25 in width. This could hardly be said to be proper sitting arrangements for 10 counting agents for 10 candidates. Same was the position with regard to table nos. 10, 11, 12, 13, 14 and 15. However, two benches in two different rows for 10 counting agents were provided only against tables nos. 4, 5, 6, 7, 8 and 9. According to the petitioner the counting hall/room was small and the provisions for the counting agents were highly inadequate. It was impossible for the petitioner as well as his election agent and counting agents to participate properly in the process of counting. The independent candidates, their election agents and counting agents were given step motherly treatment. The candidates orally protested for the arrangements but no note was taken of such protest. ( 5 ) BESIDES, there was a barrier of net of the size of 3 which would prevent the counting agents from having view of the ballot papers while sitting on the benches. Even if the counting agents would stand up, it would not be possible to look at the ballot papers as on the top of the net there was a wooden strip obstructing the vision of the counting agents. In order to have some view of the ballot papers, the counting agents were required to bend themselves. Placing of the net between the counting tables and counting agents was uncalled for and contrary to the Act and the Rules. ( 6 ) IT has been asserted by the petitioner that the Election Commission of India issued directions and instructions regarding the aforesaid election of 1994-95 and the procedure of counting of votes by mixing of ballot papers, by circular dated 17/9/1994, addressed to the Chief Electoral Officer of the State of Gujarat. Under the caption of "date, Place and time of counting" it is specifically mentioned in para 7 (d) as under :"the room or the hall must be large enough to accommodate you (Returning officer), the Counting Assistants, the candidates and their Agents, specially as there will be two sets of counting Agents for the Assembly and Parliamentary elections in simultaneous elections. Your table should preferably be on a raised platform within the room from where you can easily supervise all the counting tables. The candidates may be given seats on the same platform. Your table should preferably be on a raised platform within the room from where you can easily supervise all the counting tables. The candidates may be given seats on the same platform. There must be sufficient space in between the rows to enable a person to go up and down. . . . " ( 7 ) IT is the case of the petitioner that there was total violation of the aforesaid instructions. There was no sufficient space in between the rows of the counting agents to enable the persons to move. There was no sufficient space in between the rows to enable the candidates and their election agents to move. The petitioner and his election agent were not able to move freely in the counting hall so as to supervise the counting of votes going on at 15 tables. When the protest was raised against said arrangement, no-body paid any attention and the counting went on without providing sufficient opportunity to the petitioner, his election agent and counting agents to effectively supervise the process of counting. ( 8 ) REFERRING to the detailed procedure of counting of votes it has been asserted that counting of votes is required to be done in two stages. In the first stage, the ballot papers contained in the ballot box or boxes were to be taken out and the total number of ballot papers in the box or boxes at the polling stations would be ascertained. This procedure is known as initial counting. The number of ballot papers found in ballot box/boxes at the polling station at the initial counting would be required to be entered in Part-II Form No. 16. The ballot papers are required to be bound in bundle of 25 ballot papers each and are placed inside in a big drum. These big drums were kept for this purpose. In the second stage of counting scrutiny of ballot papers were taken up. For this purpose 40 bundles each containing 25 ballot papers making up a number of 1000 ballot papers, taken at random from the drum, were handed over to the counting tables for the purpose of scrutiny of votes. In the first round on all 15 tables said 40 bundles containting 25 ballot papers were given. For this purpose 40 bundles each containing 25 ballot papers making up a number of 1000 ballot papers, taken at random from the drum, were handed over to the counting tables for the purpose of scrutiny of votes. In the first round on all 15 tables said 40 bundles containting 25 ballot papers were given. The counting supervisor and his two assistants used to look at the ballot papers for the purpose of scrutiny thereof to find out its validity and to ascertain the preference of the voter. However, there was a barrier of net and lack of sitting arrangement for the counting agents as stated above. Besides, ballot papers were counted in hot hurry and the counting supervisors or assistants used to put the ballot papers according to their choice and whims in any-one of the compartments allotted to different candidates. On every counting table there was a tray wherein there were 14 compartments out of which 10 compartments were made for 10 candidates and 4 compartments were made for invalid votes and doubtful votes, etc. The vote in favour of the particular candidate was required to be placed in the compartment of concerned candidate. The counting supervisor and his assistants were taking 3 to 4 ballot papers at a time for scrutiny and verification and at times unauthorised persons were attending to the work of counting for completing the work of counting hurriedly. It was, therefore, impossible for the counting agents to look at more than on ballot papers simultaneously for counting. All the counting agents of the petitioner had objected to such procedure. However, the counting agents of the petitioner on table nos. 2, 7 and 8 were more vocal than others. The petitioner was called for help by them. The petitioner having found the substance in complaint of his counting agents on tables nos. 2, 7 and 8, he requested the counting supervisors to show all the ballot papers to the counting agents. As the petitioners request was not heard, he complained to the Returning Officer, who gave instructions on loud speaker to show the ballot papers to all the counting agents. Even then the counting procedure did not improve. ( 9 ) THE compartments allotted to the respective candidates for the purpose of placing ballot papers were also very small. As the petitioners request was not heard, he complained to the Returning Officer, who gave instructions on loud speaker to show the ballot papers to all the counting agents. Even then the counting procedure did not improve. ( 9 ) THE compartments allotted to the respective candidates for the purpose of placing ballot papers were also very small. Therefore, at short intervals the counting supervisor and his assistants used to take ballot papers in bundle containing 25 ballot papers. While putting the ballot papers in bundle the process of counting was continuously in progress. On account of such simultaneous process of counting and taking out of the ballot papers in bundle, it was not possible for the counting agents to watch and verify the ballot papers and their bundles. The petitioner, therefore, drew the attention of the Returning Officer of difficulty of the counting agents being not able to scrutinise the validity of the vote or preference of the voter. Upon such protest, the Returning Officer gave instructions not to take more than one ballot papers at a time. The Returning Officer also instructed that the ballot papers should be scrutinised only by the counting supervisor and in that process necessary help might be rendered by the counting assistants. The petitioner had gone to table no. 10 to verify whether the instructions were complied with, but found that they were not. He, therefore, requested the concerned officer at table no. 10 to comply with the instructions of the Returning Officer. The petitioner asked the supervisor to name the counting assistant who was taking out more than one ballot papers for scrutiny at a time. But the counting assistant without giving his name left the table and went away. The petitioner subsequently learnt that he was Mr. Kadvaji Thakor, who was not actually on duty on that table and he was in the reserved staff. ( 10 ) IT is next contended by the petitioner that on table no. 2, in the third round, the counting supervisor and his assistants were placing the ballot papers containing votes cast in favour of the petitioner either in the compartment meant for Congress-I party or compartment meant for B. J. P. (Bharatiya Janata Party ). The accounting agent of the petitioner, therefore, protested resulting in the counting supervisor expressing his regret and correcting his mistake. Something happened on table no. The accounting agent of the petitioner, therefore, protested resulting in the counting supervisor expressing his regret and correcting his mistake. Something happened on table no. 10 during the 4th round. On table no. 12 similar incident occurred. The petitioner should have secured 331 votes, but the counting supervisors declared 291 votes in favour of the petitioner and as a result of the protest of the counting agents of the petitioner, the counting supervisor corrected the mistake. ( 11 ) IT is next the case of the petitioner that during the lunch recess between 1. 30 to 2. 00 p. m. and during recess for tea break at about 5. 30 p. m. as well as during the third recess for dinner at about 9. 00 p. m. there were difficulties. During the first recess some officers having taken lunch hurriedly and having returned earlier started sorting out the votes without the presence of the counting agents. During the tea and snacks recess the provision for the tea and snacks was made in the counting hall itself and during the service of tea and snacks there was disorder in the counting hall because of discontent among the officers and the counting assistants due to poor service and cold tea, etc. It was, therefore, not possible to watch the counting process. During the third recess for evening meals poor quality of food was supplied resulting in some of the officers returning earlier and starting the counting process without waiting for the counting agents. The petitioner protested for such early counting of votes during recess hours. The Returning Officer was annoyed and in an annoyed voice announced for waiting for the counting agents. However, many of the counting supervisor and his assistants did not follow the instructions. ( 12 ) THE initial counting was over at about 1. 30 p. m. or 2. 00 p. m. and thereafter detailed counting of votes was taken on hand. When the 4th round of votes was about to be completed at about 7. 30 p. m. it was sun set. All the electric lights in the room were not working, but only less than one half of the electric lights in the room were working. Because of inadequate light facility in the room, there was no visibility on tables nos. 1, 2, 3, 4, 3 and 6. 30 p. m. it was sun set. All the electric lights in the room were not working, but only less than one half of the electric lights in the room were working. Because of inadequate light facility in the room, there was no visibility on tables nos. 1, 2, 3, 4, 3 and 6. Even during this time counting was going on and the counting agents were not able to see the ballot papers, etc. etc. In view of inadequacy of lights there was demand for arrangement of light; as a result an electrician was called by the Returning officer by making announcement on a loud speaker. The electrician came after about one hour of the call. Even then during this time the counting went on in the absence of lights on the aforesaid tables. After the arrival of the electrician after about one hour, the discussion went on for selecting the location for the focus light, for 15 to 20 minutes and the focus light was then installed in one of the corners, but even that light was not adequate. The counting still went on. Since the light was not adequate Returning Officer again called for two gas based petromax which arrived after half an hour of the call. Still the counting went on. There was a discussion for about 15 to 20 minutes for the location of the petromax. Even during this time the counting went on. The two petromax were placed between counting tables nos. 3 and 4 and counting tables nos. 12 and 13. Even then the light was highly inadequate. Besides the patromax were generating heat, making it intolerable for the counting agents to sit at their respective places near the aforesaid tables and many of them including the petitioners counting agents had left their respective places and sat at a distance from where it was not possible to watch the ballot papers and counting process. Such mis-management regarding the light went on from the 4th round till the completion of the counting. ( 13 ) IT is next the case of the petitioner that the votes which were counted on the counting tables were brought by the counting supervisors in a tray before the Returnable officer. The Returnable Officer was counting only invalid and doubtful votes in the tray, but was not counting or checking the votes secured by each of the candidates. The Returnable Officer was counting only invalid and doubtful votes in the tray, but was not counting or checking the votes secured by each of the candidates. Relying on the counting supervisor, the votes secured by the candidates were placed in their respective compartments in the pigeon hole which was behind the raised platform. ( 14 ) IT has then been asserted by the petitioner that during counting round no. 5 one mr. Mahendra Makwana, a driver in the District Civil Supply office had entered the counting hall and started counting votes on table no. 2. He was related to Shri Mukulbhai parmar, respondent No. 2 herein, a Congress party candidate. He was placing a bunch of ballot papers in the compartment of said candidate, even though the bunch of votes was in favour of some other candidates. The petitioners counting agents protested against such behaviour resulting in Shri Makwana leaving the table no. 2 and going out of the counting ( 15 ) IT is next contended that there was great and undue haste in counting of votes as if the officers were determined to declare the result of Vadgam Constituency at the earliest and first in time in the entire State of Gujarat. This resulted in many votes cast in favour of the petitioner and other candidates being not counted properly or being wrongly rejected. ( 16 ) IT is next the case of the petitioner that 2428 votes were wrongly rejected and most of these votes were in favour of the petitioner. If such votes were taken into consideration the petitioner would have won the election. ( 17 ) IT is contended by the petitioner that as required by the order issued by the election Commission of India a duty is cast upon the Returning Officer to count 5% of total number of bundles of valid ballot papers of different candidates in order to ensure accuracy in the counting of votes. There is a further duty to select such 5% of ballot papers in such a manner, that it contains bundles pertaining to different contesting candidates. In the present case no such counting was done by the Returning Officer. Thus, further accuracy of counting could not be ensured. There is a further duty to select such 5% of ballot papers in such a manner, that it contains bundles pertaining to different contesting candidates. In the present case no such counting was done by the Returning Officer. Thus, further accuracy of counting could not be ensured. It is finally the case of the petitioner that after the counting of votes was over the Returning Officer did not wait for one or two minutes so as to enable the candidates or their counting agents for making necessary application including application for recounting as required by orders of Election commission of India. In violation of such orders the Returning Officer immediately signed the result sheet. Under such circumstances, the petitioner had no occasion to register his grievance and/or to make application for recounting of votes. ( 18 ) ON account of all aforesaid facts and circumstances, the result of the election in so far as the respondent No. 1 is concerned, is materially affected. As a matter of fact, the petitioner would have been declared elected from 101 Vadman Assembly Constituency of the State of Gujarat. The difference between the number of votes secured by the returning Candidate and the petitioner is marginal, namely 1100 votes from the constituency comprising of about 1,00,000 votes. ( 19 ) IT is, therefore, the say of the petitioner that there should be recounting of votes. The petitioner has asserted that there was a video recording of counting process intermittently in operation and the court can view video cassette for verifying the facts set out by the petitioner. ( 20 ) THE petitioner has set out the description of a model lay-out of counting hall and arrangements of tables and stage at exh. 3 and a sketch of the actual position of the hall in question and the tables and the stage therein at exh. 2. . ( 21 ) AT exh. 6/1 the respondent No. 1 has filed Recrimination Application No. 1 of 1995 in this petition. It is dated 6/7/1995. ( The petition is dated 21/04/1995 ). ( 22 ) IN the Recrimination Application the respondent No. 1 has asserted that he was the returned candidate from the aforesaid 101 Vadgam Assembly Constituency of banaskantha District. 6/1 the respondent No. 1 has filed Recrimination Application No. 1 of 1995 in this petition. It is dated 6/7/1995. ( The petition is dated 21/04/1995 ). ( 22 ) IN the Recrimination Application the respondent No. 1 has asserted that he was the returned candidate from the aforesaid 101 Vadgam Assembly Constituency of banaskantha District. According to him if the opponent No. 1 (Election Petitioner) in whose favour the declaration is claimed is declared elected, his election would be void on account of improper reception of votes cast for him, improper refusal and/or rejection of votes cast for the applicant (returned candidate-respondent No. 1) and the reception of votes cast in favour of the opponent No. 1 (election petitioner), which would be void. It is the case of the respondent No. 1 that the counting agents of election petitioner were moving around all the counting tables, interfering with the work of counting by administering threats to the officials by creating disturbance and trouble by shouting and creating noise. On number of occasions the Returning officer had to warn them to behave properly and to maintain decorum and dignity of the occasion. By such tactics and techniques the election petitioner managed to get many votes improperly accepted in his favour and compelling the election officers to refuse and/or reject many valid votes cast in favour of the applicant - respondent No. 1 herein. Besides, the election petitioner is alleged to be guilty of committing breach of Code of Conduct in so far as he used more vehicles than permitted and did not account for the same. Such vehicles were used for the purpose of canvassing and for bringing voters at the polling booths. He accordingly committed corrupt practice within the meaning of sec. 100 of the Act. The respondent No. 1 being the applicant in Recrimination Application has, therefore, claimed following reliefs in the Recrimination Application :" (a) Be pleased to call for the election papers including the packets of unused ballot papers with counter foils attached thereto, packets of used ballot papers whether valid, tendered or rejected, packets of counter foils of used ballot papers from the Returning Officer herein and to take inspection of the same and to pass other necessary orders under Rule 93 of the Conduct of Election rules, 1961. (b) Be pleased to direct re-counting of the votes cast in the election of Gujarat state Assembly for 101, Vadgam Assembly, Constituency, held on 20th february, 1995, in the events of giving declaration as prayed by opponent no. 1 in Election Petition No. 1 of 1995. (c) This Honble Court may be pleased to declare the election respondent No. 1 to Gujarat State Assembly from 101, Vadgam Assembly Constituency void. (d) This Honble Court may be pleased to declare the applicant as elected to gujarat State Assembly from 101, Vadgam Assembly Constituency, held on 20th February, 1995. " ( 23 ) THE election petitioner has filed his reply to the Recrimination Application at exh. 8 and the respondent No. 1 has filed his reply to the election petition at exh. 19. They have denied the allegations contained in the pleadings of their counter part. It has been also contended by the respondent No. 1 that the names of the petitioner stated in the petition and the person who actually contested the election are quite different and, therefore, the petition deserve to be dismissed. Same is the position with regard to name of respondent No. 4. They have accordingly sought dismissal of the respective petitions, namely Election Petition and the Recrimination Application with cost. ( 24 ) NO summons for directions were taken out by either of the parties. ( 25 ) AFTER hearing the learned advocates for the parties and considering the suggested issues, following issues were framed at exh. 10 : (1) Whether the respondent No. 1 proves that the petitioner Daulatbhai challaram Parmar is different from Daulatbhai Chellaram Parmar as alleged in the reply to the petition ? (2) Whether the petitioner proves that in counting of votes for the Assembly election of 101 Vadgam Assembly Constituency of Banaskantha District held on 28. 2. 1995 illegalities and/or irregularities were committed as alleged in the petition ? if yes, what is its effect ? (3) Whether the applicant of the Recrimination Application proves, that the provisions of the Representation of People Act, 1951 while giving notice under Sec. 97 have been complied with ? if yes, whether the applicant of the Recrimination Application proves that the election of opponent no. 1 of that application in whose favour the declaration is claimed would have been void if he had been a returned candidate as alleged in the application ? if yes, whether the applicant of the Recrimination Application proves that the election of opponent no. 1 of that application in whose favour the declaration is claimed would have been void if he had been a returned candidate as alleged in the application ? (4) What order? ( 26 ) MY finding on the issues would be as under: (1) In the negative. (2) First part - in the negative second Part does not survive. If it survives the counting process and the result of the election cannot be said to have been materially affected. (3) First part Not argued and not necessary to be decided in view of finding on 2nd point. Second part In the negative. (4) As per order below. REASONS ( 27 ) AS compared to the lengthy pleadings, the evidence is quite short. It mainly consists of oral evidence on behalf of the petitioner. The petitioner has examined himself at exh. 12. His further witnesses are P. W. 2 Vaghajibhai Raisangbhai Patel exh. 14, PW. 3 ratilal Nagardas Umangi exh. 15, PW. 4 Ayubkhan Salmankhan Sindhi, exh. 16, P. W. 5 samrathkhan Motamiya Pirozkhan Bihari, exh. 17, P. W. 6 Ismailbhai Sulemanbhai rajeria exh. 20 and PW. 7 Habibhai Alimohmand Avra exh. 21. On behalf of the respondent No. 1, he has examined Kantialal Bhikhabhai Raval as witness no. 1 at exh. 24, Bhikhabhai Darshanbhai Patel as witness no. 2 at exh. 25, Kesharbhai Jalambhai Patel at exh. 26 and he himself as witness no. 4 at exh. 27, since he was ailing at the relevant point of time when evidence of his side commenced. The learned counsel for the petitioner has concentrated on three aspects of the petitioners case. They respectively relate to (1) shortage of space in the counting hall, (2) disturbance during the recess/es and (3) insufficient light. The arguments canvassed on behalf of the respondent No. 1 mainly consist of the reply and nothing in particular has been said with regard to recrimination Application. It would, therefore, be appropriate to discuss the evidence with regard to three different aspects of the petitioners case pressed into service by the learned senior advocate for the petitioner. All the three aspects of the case flow from Sec. 100 (1) (d) clause (iv), although the petition is founded on both the clauses, namely clauses (iii) and (iv ). The provision would read as under :"100. All the three aspects of the case flow from Sec. 100 (1) (d) clause (iv), although the petition is founded on both the clauses, namely clauses (iii) and (iv ). The provision would read as under :"100. Grounds for declaring election to be void (1) Subject to the provision of Sub-sec. (2) if the High Court is of opintion (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate (by an agent other than his election agent), or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this act or of any rules or orders made under this Act [the High Court shall declare the election of the returned candidate to be void]. "at this very stage it has to be highlighted that the result of the election has to be materially affected by what is stated in the aforesaid Sub-clauses (iii) and (iv), clause (iv) in particular. It would, therefore, be appropriate now to consider the evidence placed on the record of the case. The oral evidence placed on the record of the case is, in my opinion, more vague even than the pleadings of the parties. The petitioner who himself had contested earlier elections and was declared as returned candidate therein, is an experienced hand at the election and the counting process. It is an admitted fact that neither he nor any of the other candidates including the respondent No. 1 lodged any written complaint with regard to any difficulty or irregularity which is alleged to have been witnesses by them. It is also an admitted position that all that has been said to have been protested was quite oral. Even an ex-post-facto complaint in writing has not seen the light of the day and such complaint is made only for the first time in this petition. Even when the result was declared the petitioner had signed the required form of declaration. It is in this connection that Rule 63 of the Rules would assume importance and the same may be reproduced:"63. Even when the result was declared the petitioner had signed the required form of declaration. It is in this connection that Rule 63 of the Rules would assume importance and the same may be reproduced:"63. Re-count of votes (1) After the completion of the counting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. (2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to re-count the votes either wholly or in part stating the grounds on which he demands such re-count. (3) On such an application being made the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. (4) Every decision of the returning officer under Sub-rule (3) shall be in writing and contain the reasons therefore. (5) If the returning officer decides under Sub-rule (3) to allow a recount of the votes either wholly or in part, he shall (a) do the recounting in accordance with rule 54a, rule 56 of rule 56a, as the case may be ; (b) amend the result sheet in Form 20 to be extent necessary after such re-count; and (c) announce the amendments so made by him. (6) After the total number of votes polled by each candidate has been announced under Sub-rule (1) or Sub-rule (5), the returning officer shall complete and sign the result sheet in Form 20 and no application for a recount shall be entertained thereafter : provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by Sub-rule (2 ). ( 28 ) A faint effort has been made by the election petitioner to show that the returning officer did not wait for the required time of one or tow minutes for enabling the petitioner to lodged a complaint for recount. This version of the petitioner is not believable. ( 28 ) A faint effort has been made by the election petitioner to show that the returning officer did not wait for the required time of one or tow minutes for enabling the petitioner to lodged a complaint for recount. This version of the petitioner is not believable. It is not probable that the petitioner a seasoned candidate at the election would have withstood such a conduct on the part of the Returning Officer and would have remained silent till upto the filing of the petition without making any complaint in writing with regard to such conduct to the Election Commission. On the contrary what he has said is on account of his own goodness he did not lodge a complaint in writing. This is quite contradictory to his case that the Returning Officer did not wait for required time of a minute or two for enabling the candidate to file his/their objection/s. It would be important to notice the provision of Rule 64 of the Rules also at this stage :"64. Declaration of result of election and return of election The returning officer shall, subject to the provisions of Sec. 65 if and so far as they apply to any particular case, then (a) declare in Form 21c or Form 21d, as may be appropriate, the candidate to whom the largest number of valid votes have been given, to be elected under sec. 66 and send signed copies thereof to the appropriate authority, the election Commission and the chief electoral officer; and (b) complete and certify the return of election in Form 21e and send signed copies thereof to the Election Commission and the chief electoral officer. "the aforesaid two rules contemplate two different stages which obviously make available to the candidates returned or unreturned to have their say in the matter of declaration of result, that having not been done and admittedly on his own say the reason for that having not been done failing as stated above, the first part of Sec. 100 Sub-sec. (1) clause (d) has not been established. For the purpose of satisfying about this conclusion reference may be made to the petitioners own testimony at exh. 12. In para. 10 he has stated that the result was declared before he could make demand for recounting. (1) clause (d) has not been established. For the purpose of satisfying about this conclusion reference may be made to the petitioners own testimony at exh. 12. In para. 10 he has stated that the result was declared before he could make demand for recounting. He did demand recounting of vote, but the Returning Officer has replied that as result was declared such demand would not be entertained. To this his reaction in the cross-examination in paras. 22 and 23 is as under :"22. It is not true to say that the R. O. followed all requirements of law before declaring the results. Question : It is true that you had signed on the declaration of results ? Answer : It is true that I signed the declaration of results but I did so out of goodness. 23. It is true that I have complete knowledge of election law and procedure. I say that out of my goodness I did not object in writing at any point of time, whether before declaration of results or after declaration of results. It is true that I did not demand recounting. "ayubkhan Salman Khan Sindhi, PW. 4, exh. 16 has in para. 6 of his cross-examination in clear terms admitted that they did not ask for recounting. P. W. 5 samarthkhan Motamiya Pirozkhan Bihari, exh. 17 has thus stated in para. 5 of his evidence :"i know that whenever there is some disturbance or irregularities during counting, written objections should be given. With regard to the disturbances and irregularities stated by me, no written objections were given by us or on our behalf. Further, he has stated in para. 19 of his evidence as under:"19. It is not true that the R. O. has followed all the procedure before declaring results. Question : The petitioner signed the declaration of the results. What you have to say ? Answer : It is true that the petitioner signed the declaration of results, but he signed the declaration subsequently. "then in para. 20 he has said thus :"it is true that no candidate could be compelled to sign the declaration after the result is declared. " ( 29 ) IT is clear on going through the evidence adduced on behalf of the petitioner that what has been complained of is all oral. "then in para. 20 he has said thus :"it is true that no candidate could be compelled to sign the declaration after the result is declared. " ( 29 ) IT is clear on going through the evidence adduced on behalf of the petitioner that what has been complained of is all oral. No written objection has been taken with regard to any of the difficulties or irregularities at any point of time during the process of counting or soon after the process of counting was closed and result was declared. The question, therefore, would be as to whether the election could be said to have been, materially affected by all or any of the irregularities or difficulties alleged to have been committed at the time of counting of the votes. The answer would be obviously in the negative. Same would be a proper outcome of the appreciation of the evidence on the three aspects of the petitioners case which has been canvassed by the learned counsel for the petitioner. ( 30 ) IN the first instance reference has been made to the shortage of space in the counting hall. According to the submissions made on behalf of the petitioner there is a violation of the instructions with regard to required space of the counting room or counting hall and the arrangements to be made in such hall. Reference has been made to the instructions which have been reproduced in the petition. From page 12 following instructions have been read :"the room or the hall must be large enough to accommodate you (Returning officer), the Counting Assistants, the candidates and their Agents, specially as there will be two seats of counting agents for Assembly and Parliamentary elections in simultaneous elections. Your table should be preferably be on a raised platform within the room from where you can easily supervise all the counting tables. The candidates may be given seats on the same platform. There must be sufficient space in between the rows to enable a person to go up and down. . . . "the specified working of the space occupied by the tables, chairs, benches, stage and the persons has been set out in para. 5. 16 and onwards. The candidates may be given seats on the same platform. There must be sufficient space in between the rows to enable a person to go up and down. . . . "the specified working of the space occupied by the tables, chairs, benches, stage and the persons has been set out in para. 5. 16 and onwards. Accordingly the counting table is required to be of such length as to accommodate 10 counting agents in front of the table and, therefore, is required to be of the length of 15 ft. As per Appendix 3 if tables are placed one side length of the hall is required to be atleast 120 ft. The provision of a raised platform stage is also required to be made and if it is taken to be 8 ft. in length, the length of the room is required to be 128 ft. Now if a gap of 3 ft. is required to be left, there shall have to be addition of 24 ft. to 25 ft. making the total length of the room 152 ft. Thus, for accommodating 15 counting agents considering the appropriate width to be 16 or 17 the area should be atleast 2584 sq. ft. As against that, counting hall of the area of about 1500 sq. ft. only was provided for counting of votes. It has thus been attempted to be shown that it was impossible for the petitioner, his election agents and his counting agents to properly supervise the counting process. It is no-doubt true that it has been set-out in the evidence on behalf of the respondent No. 1, that the area of the hall was around 40 x 40. There is no clear or cogent evidence about the exact area of the hall. It is also true that the arrangement of the tables is not as per Appendix 3, but it is an admitted position that 15 tables and a stage were accommodated in the hall in question and, therefore, the submissions revolving round so called impossibility of supervising the counting process become doubtful of being accepted. The respondent no. 1s witness no. 1 Kantialal bhikhabhai Raval exh. 24 has been referred to for what he has said in para 8 of his deposition. It reads as under :"8. The petitioner was leading in the 1st round but not in the 2nd round. The respondent no. 1s witness no. 1 Kantialal bhikhabhai Raval exh. 24 has been referred to for what he has said in para 8 of his deposition. It reads as under :"8. The petitioner was leading in the 1st round but not in the 2nd round. He was however leading at the end of 4th round. Except during recess hours I had attended to watching of counting on table no. 15. I am shown the map at page no. 37. The position of the table no. 15 is correctly shown. The position of the r. O. s stage is correctly shown there. The position of other tables has also been correctly shown there. The entrance is also correctly shown there. The position of the benches is correctly shown in the sketch". The aforesaid evidence would not lead the matter any further ; that would lead to supporting the petitioners sketch in so far as arrangements of tables, chairs, benches and stage are concerned. In so far as actual measurements are concerned, I have no hesitation in finding that there has been a sort of exaggeration if the evidence as a whole is taken into consideration. The evidence indicates that there were occasions for the petitioner or his counting agent/s to complain about one or the other difficulty and the R. O. announcing on mike so as to redress the complaint. It is in the evidence of the petitioner and his witnesses that the complaints were attended to and the things were set right leaving no part of the complaint being undredressed. This would speak volumes about the freedom of movement into the hall in so far as the petitioner and his counting agents were concerned. Thus, the picture that would shape out in the evidence might be thus stated. The size of the hall might be smaller than the size that would be required to accommodate the R. O. and his staff, including one counting supervisor and two assistants on each of the tables, 10 candidates, their election agents (one in number) and counting agents. It is an admitted position that in the morning nearly 200 persons or a little more were present. However, by passage of time the counting agents of the candidates who miserably behind in the counting, had left. It is an admitted position that in the morning nearly 200 persons or a little more were present. However, by passage of time the counting agents of the candidates who miserably behind in the counting, had left. This is what has come in the evidence and it would be reasonable to believe the correctness of this evidence as there has been no written complaint about inability or impossibility on the part of counting agents to supervise the counting. Had the crowd into the hall continued throughout the period, there would have been a possibility of some difficulty faced by one or the other candidate. This is of-course, on presumption that the size of the hall being 39 x 39 or 40 x 40 deposed to in the evidence of the rival parties is a correct size. Be that it may, the fact remains that none of the petitioners complaints remained unreetificed or unattended to. Therefore, although the oral evidence as has been noted hereinabove has remained unsupported by any substantial corroboration, the same does not take the matter any further. The result of the election cannot in any manner be said to have been materially affected by the alleged shortage of space. It is no- doubt true that in the instructions addressed to the R. O. the election Commission has said as under :date, place and time counting 7 (a) Fixed sufficiently in advance, and, in any case, before the last date for the withdrawal of candidatures the date for the counting of votes in respect of the constituencies of which you are the Returning Officer, as also the place and time at which the votes will be counted on the date or each of the dates so fixed. If the Commission has fixed any specific date or indicated any guideline for fixing the date of counting, the same should be strictly adhered to. (b) The place for the counting of votes in a constituency is left entirely to your discretion. It may either be at your own headquarter, the district headquarter or any other place which you consider to be convenient for the purpose. There will be no legal objection even if the place so fixed is outside the limits of the constituency, but that should be avoided as far as possible. It may either be at your own headquarter, the district headquarter or any other place which you consider to be convenient for the purpose. There will be no legal objection even if the place so fixed is outside the limits of the constituency, but that should be avoided as far as possible. However, the Commissions prior approval must be obtained in regard to the place (s) of counting fixed by you. The Commissions prior approval should also be obtained if any change is considered necessary in the place (s) of counting as approved by the Commission. (c) Give notice of the place, date and time to each candidate or his election agent at may be appropriate in the forms prescribed by the Commission for the purpose (vide Annexure XXIII or XXIV of handbook for Returning officers-Reprint 1991), as the case may be. If, for any unavoidable reason, you are unable to proceed with the counting at the place and at the time and on th date so fixed and communicated to the candidates, you can postpone the counting and should fix another date and time and, if necessary another place for the counting of the votes with prior approval of the Commission. You should give notice of every such change in writing to each candidate and his election agent. (d) The room or the hall must be large enough to accommodate you, the counting assistants, the candidates and their agents, the especially as there will be two sets of counting agents for the assembly and parliamentary elections in a simultaneous election. Your table should preferably be on a raised platform, within the room from where you can easily supervise all the counting tables. The candidates may be give seats on the same platform. There must be sufficient space in between the rows to enable a person to go up and down. As far as, practicable, the counting of votes in temporary structures should be avoided as seasonal conditions like rains etc. , would affect the process of counting in such places. However, if it becomes unavoidable to arrange the counting in temporary structures made of inflammable material, care should be taken to post security guards and the fire-brigade (or other arrangements for extinguishing fire) against an emergency. , would affect the process of counting in such places. However, if it becomes unavoidable to arrange the counting in temporary structures made of inflammable material, care should be taken to post security guards and the fire-brigade (or other arrangements for extinguishing fire) against an emergency. xxx xxx xxx xxx number and arrangement of counting tables 9 (a) Counting of votes should be done on table arranged in rows separately for the parliamentary and assembly elections as shown in Appendix III. Beside in advance how many counting tables you are going to have at each place of counting. Latest instructions of the Commission with regard to number of counting tables should be strictly observed while fixing that number. On that will depend the number of counting assistants that you will need to appoint and the number of counting agents that each candidate will be entitled to appoint. The size of the counting hall will, in most cases, determine the number of counting tables on which the votes can be counted simultaneously at each place. At a simultaneous election, the counting tables should be so arranged that the actual movement of parliamentary ballot papers from the assembly table to the parliamentary table is visible to the counting agents sitting at both the counting tables. If the hall available at the place is not commodious enough, the number of tables may be reduced to any figure which you consider suitable after taking into account the size of the hall, the number of counting staff available and also the total number of assembly and parliamentary candidates whose agents will have to be accommodated. " at the same time it has to be reiterated that, as stated above, the result of the election has not been adversely affected by the so called difficulties and/or irregularities. ( 31 ) TAKING the second aspect of the case canvassed on behalf of the petitioner the evidence discloses the following state of affairs : the petitioner has stated in his examination-in-chief that after the initial counting was over before recess at 1. 30 p. m. sorting of ballot papers had started before all the counting agents reached the counting hall and he objected against the counting being started as it had started between 1. 45 pm. and 2. 00 p. m. Even during the tea and refreshment recess at 5. 30 p. m. sorting of ballot papers had started before all the counting agents reached the counting hall and he objected against the counting being started as it had started between 1. 45 pm. and 2. 00 p. m. Even during the tea and refreshment recess at 5. 30 p. m. there was a difficulty with regard to supervising counting as the tea and refreshment served in the room itself were not of good quality and the petitioner and his persons could not pay attention to the counting at that point of time. During the dinner recess between 9. 00 and 9. 30 p. m. also counting started earlier with the result that the returning Office had to instruct the supervisors and assistants to stop counting work. Some, however, did not stop the counting work. In his cross- examination the witness has denied about there being no disturbance or difficulty during the recess time. However, the admissions with regard to the lodging of complaint as noted hereinabove would also clinch the issue in so far as the second part of the petitioners case is concerned. As a matter of fact the oral evidence in this respect adduced by and on behalf of the petitioner cannot be accepted as, if the counting process had started during recess time and before the recess was over, that would have resulted in grievance being made on behalf of not only the petitioner, but all the concerned parties. The evidence does not indicate such a sort of state of affairs. It is, therefore, difficult to believe the story of commencement of counting before the recess time was over. ( 32 ) IN so far as third part of the petitioners case is concerned it relates to insufficient light after the sun set on the day of counting. In the background of what has been stated in the petition it may be seen what has come you in the evidence. In para 7 of his evidence the petitioner has stated that in half of the hall tube-lights were working and in half of the hall it was dark as tube-lights were not working. He has denied the whole story with regard to provision having been made before hand by keeping in the hall the focus lights and the petromax lights. It would be interesting to note P. W. 2 Vaghaji Raisangbhai Patel exh. He has denied the whole story with regard to provision having been made before hand by keeping in the hall the focus lights and the petromax lights. It would be interesting to note P. W. 2 Vaghaji Raisangbhai Patel exh. 14 had to say with regard to insufficiency of lights. He has stated in para. 5 of his evidence that 10 minutes after the lights were switched on at about 7. 30 p. m. in the evening, one or two lights failed and upon the Returning Officer having announced for making provision for additional light, the electrician brought one focus light and two petromax were also provided. This variation of version in the matter of insufficiency of light makes it difficult to accept the case of the petitioner. There is further diversion in the story having been stated by the petitioners witness no. 3 Ratilal Nagardas Umangi exh. 15. He has testified that the tube-lights were not properly working and six tube-lights which were there, were irregularly working. Samarthkhan Motamiya Pirozkhan Bihari pw. 5, exh. 17 has stated this story in this fashion : "6. It was dark at about 7. 30 p. m. At that time there was no sufficient light on table nos. 1 to 6. We, therefore, complained to the returning officer as it was not possible for the counting agents to see. During that time counting remained in progress. On our complaint the returning officer announced for wireman. Wireman brought focus light. Even after focus light was placed, there was no sufficient light in the hall. Out of the 6 tubes lights 3 were working and 3 were not working. 2 petromax were called. One patromax was placed between table Nos. 3 and 4 and the other was kept in between table nos. 12 and 13. On account of heat thrown out of the petromax the counting agents were required to keep away from the counting tables. They were therefore, unable to see the counting properly. " bearing in mind the nature of the evidence adduced on behalf of the petitioner I have no other course except to discard it and accept the version of the witnesses examined on behalf of the respondent No. 1 saying that provision for focus light and petromax was made before hand in order to meet with any emergency situation of insufficiency of light during the counting process at night time. ( 33 ) HOWEVER, even with regard to second and third aspects of the petitioners case the evidence adduced on behalf of the petitioner, if believed, would not lead to any consequence of recounting or declaration of the election void. The reason is that the result of the election has not been adversely affected as can be seen from the evidence read as a whole. Merely because the respondent No. 1 was returned by 1100 votes, it cannot be held that the petitioner would have been successful, if he had not faced any of the alleged difficulties. The position of law is now well settled in this regard. Reference needs be made only to the decisions which have been referred to on behalf of the parties. The first one is in the case of Bhabhi v. Sheo Govind and ors. reported in air 1975 SC 2117 , where the Apex Court has set out following conditions being imperative before the Court can order inspection of ballot papers :" (1) That it is important to maintain the secrecy of the ballot wliich 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 Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties ; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials. "the next is the decision in the case of R. Narayanan vs. Sommalal and Ors. reported in (1980) 2 SCC 537 . "the next is the decision in the case of R. Narayanan vs. Sommalal and Ors. reported in (1980) 2 SCC 537 . In that case Respondent s, the defeated candidate, filed an election petition in the Madras High Court challenging the election of the appellant n to the Tamil Nadu Legislative Assembly in an election held on May 11, 1977. The main grounds taken in the election petition were that there were a number of errors in the counting of votes and that the electoral roll itself was inaccurate. The main relief sought 550 by s was a re-count of votes. The appellant n also filed a recrimination petition alleging that s had actually got a number of wrong votes and that his margin of victory would have otherwise been higher. The High Court rejected the recrimination petition as time-barred. In the main election petition the High Court found most of the allegations of s not proved, but ordered a re-count holding that although there was no clear evidence of any irregularity in counting in the first two rounds, there was a possibility of the counting staff being completely exhausted in the third round which may have led to erroneous sorting and counting of votes. In ordering a re-count the High Court was also influenced by the fact that the margin by which n succeed over s was only 19 votes. n filed two appeals in the Supreme Court, Civil Appeal No. 524 of 1978 against the judgment in the main election petition and Civil Appeal No. 588 of 1978 against the order of the High Court dismissing his recrimination petition. Allowing Civil Appeal No. 524 of 1978 and passing no order in Civil Appeal No. 588 of 1978, it was held as under : (1) The finding of the High Court regarding the exhaustion of the counting staff and the resultant possibility of error is based purely on speculation. It is obvious that election, being a technical matter, the authorities choose experienced persons to do the counting and take every possible care to see that the members of the staff do not commit any error. Moreover the relief of re-counting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. Moreover the relief of re-counting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The Judge himself holds that the respondent has not established any specific instance of erroneous sorting and that the allegations made in the pleadings as well as in the evidence are general, yet he accepts the case of the respondent on such insufficient and infirm evidence. From the timings of the rounds it appears that there were sufficient intervals between the three rounds and therefore the question of the staff being tired does not arise. Moreover, re-count should be ordered not on possibility of error but when the matter is proved with absolute certainly. (2) The fact that the margin by which the appellant succeeded was very narrow was undoubtedly an important factor to be considered but that would not by itself vitiate the counting of votes or justify re-counting by the court. As a matter of fact of the election petitioner before the Apex Court had made an : application before the Returning officer for a re-count. In the present case the position with regard to making of grievance has not resulted into making of any written application of filing any written objection before either the Returning Officer or before the Election Commission. Reference has been made to the rectification of or sorting out of the difficulties presented on behalf of the petitioner as and when that was done during the counting process. It that is so, present petition is nothing but a gamble. The allegations in the petition and more particularly in the evidence adduced on behalf of the petitioner are not less vague than the allegations before the Apex Court. In my opinion the decision of r. Narayanans case applies on all fours to the facts of the present petition. It that is so, present petition is nothing but a gamble. The allegations in the petition and more particularly in the evidence adduced on behalf of the petitioner are not less vague than the allegations before the Apex Court. In my opinion the decision of r. Narayanans case applies on all fours to the facts of the present petition. The Court has observed that there would be a justification in ordering re-count of the ballot papers only where (1) the election petition contains an adequate statement of all material facts on which the allegations of irregularity and illegality in counting are founded; (2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. The Apex Court has set out the following observations from halsburys Laws of England and Law of Parliamentary Elections and Election Petitions respectively with approval:"a re-count is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the Returning Officer. ""a strong case must be made on affidavit before an order can be obtained for inspection of ballot papers or counterfoils. "the observations made by the Honble Supreme Court in the case of Chanda Singh vs. Choudhary Shiv Ram Verma reported in (1975) 4 SCC 393 : AIR 1975 SC 403 , from pp. 396 and 397 of SCC in para. 24 of the R. Narayanans case (supra) read as under :"a democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers lead to the formation of governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant re-counts 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 the re-count of votes is made easy. If the counting of the ballots are interfered with by too frequent and flippant re-counts 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 the re-count of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a re-count Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of re-count to cases of genuine apprehension of misconduct or illegality or other compulsion of justice necessitating such a drastic step. " ( 34 ) IN view of the legal position as noted hereinabove the petitioner cannot succeed in this petition. In any case even the date of the evidence adduced in the matter does not help the petitioner. My findings on the issues, therefore, are against the petitioner as stated above. ( 35 ) IT is interesting to note that the first respondent has taken a contention with regard to identity of the petitioner. This can be noticed from issue no. 1. The very contention on the face of it is not correct and when it has been taken to trial it has shaped out to be frivolous. In any case, the evidence adduced on behalf of the petitioner in respect of issue no. 1 does establish that the petitioner Daulatbhai Challaram Parmar is the same person as daulatbhai Chellaram Parmar. ( 36 ) SAME is the state of affairs with regard to Recrimination Application. As a matter of fact no clue can be found in the evidence adduced on behalf of the first respondent (applicant of the Recrimination Application ). The Recrimination Application must therefore fail. ( 37 ) THE election petition and Recrimination Application are dismissed. The petitioner and the respondent No. 1 shall bear their own cost. There shall be no order as to cost in so far as rest of the respondents are concerned. Copy of this judgment be sent to the Election Commission, New Delhi. .