P. K. MISRA, J. ( 1 ) THE petitioner has filed this application under the Representation of the People Act (hereinafter referred to as the "act") for declaring the election of respondent No. 1 as void and for inspection and recounting of all the ballot papers and to declare the petitioner to have been duly elected. ( 2 ) CERTAIN facts which are no longer in dispute may be noticed. The election to 24-Korei Assembly Constituency took place on 9-3-1995 and on 12-3-1995, respondent No. 1 was declared to be elected having secured 60,415 votes as against 57,591 votes secured by the present petitioner, who was the nearest rival, the margin of difference being 2,824. It is not disputed that the counting took place on 11-3-1995 and was finalised on 12-3-1995 in N. C. College, Jajpur. 14 tables had been placed in "u"-shape manner for the purpose of counting and another table was placed for utilisation of the Returning Officer. In respect of each table there was a Counting Supervisor and two Counting Assistants who were seated on either side of the Counting Supervisor and the various Counting Agents of the candidates were seated opposite to the Counting Supervisor and a barrier had been provided in front of each table. The procedure of counting which had been followed was as follows :-THE ballot boxes were being brought to each counting table one by one; the ballot boxes were being opened and the number of ballots found was being tallied with the figure indicated in the accompanying document and thereafter the ballots were being kept in bundles of 25 each. All the ballots after being bundled in like manner were kept in a big drum and mixed together. In the second phase of counting, that is to say, at the time of actual counting, thousand ballots (40 bundles each consisting of 25) were being brought to a counting table at a time. Each ballot was being sorted out respective candidate-wise and kept in pigeon hole meant for each candidate and the doubtful ballots were kept separately to be sent to the central table for further checking. After the ballots were sorted out candidate-wise, 25 ballots were being kept in one bundle and the votes polled by each candidate at the end of each round of counting were being entered in a memo and sent to the central table. After the ballots were sorted out candidate-wise, 25 ballots were being kept in one bundle and the votes polled by each candidate at the end of each round of counting were being entered in a memo and sent to the central table. ( 3 ) THOUGH, by and large, there is no dispute about the procedure adopted, the main grievance of the petitioner centres round the illegalities/irregularities in the process of counting. Initially, the petitioner had challenged the election mainly on two grounds, one relating to corrupt practice and the other relating to illegality/irregularity in the process of counting of votes. After substantial progress in the trial of the election case had been made, the petitioner filed a Memo supported by affidavit indicating that he was no longer interested to press the allegations relating to alleged corrupt practice. Subsequently, a petition was filed and order was passed, in effect, confining the election petition to the allegations relating to illegality/irregularity in the process of counting. Though initially several Issues had been framed including issues relating to corrupt practice, in view of the petition, only Issues Nos. 1, 2 and 7 are required to be considered. The said Issues framed by my learned predecessor Hon'ble D. M. Patnaik, J. , are extracted hereunder :-ISSUES1. Whether there was any improper reception and/or rejection of ballot papers and whether such reception and/or rejection has materially affected the result of the election of the petitioner?2. WHETHER the result of election so far as it relates to the petitioner has been materially affected because of the wrong counting and/or building of the ballot papers and whether the refusal of the Returning Officer for recounting at the instance of the petitioner has materially affected the result of the election of the petitioner?7. To what relief, if any, the petitioner is entitled? ( 4 ) THE material allegations relevant for the purpose of deciding these Issues are contained mainly in paragraph-10 of the election petition. Though in some other paragraphs reference has been made to these allegations, it is necessary to extract the relevant portion of paragraph-10 only, as the allegations in other paragraphs are only ancillary in nature. V10. . . . . . . Though in some other paragraphs reference has been made to these allegations, it is necessary to extract the relevant portion of paragraph-10 only, as the allegations in other paragraphs are only ancillary in nature. V10. . . . . . . and further bundling illegality and improperly bundling 26 or more votes cast in favour of the petitioner in one bundle and counting the same as a bundle of 25 valid votes casted in favour of the petitioner and on the other hand bundling 24 or less votes cast in favour of the Respondent No. 1 in one bundle and counting the same as 25 valid votes cast in favour of the Respondent No. 1 and not allowing the repeated objection of the counting agent and election agent of the petitioner to properly count the votes before bundling and recounts the bundles and in that process in the minimum of 2500 valid votes cast in favour of the petitioner have been not taken into account and the total account shown is to that extent less than the actual votes cast in favour of the petitioner. This apart, number of time the counting personnels being the henchmen of Respondent No. 1, his brother Utkal Das who is the Chairman of Jajpur Block, placed the valid bundle of petitioner's votes in the Respondent No. 1's pocket, objections to that effect were not at all acceded to. Similarly about 2500 excess votes have been shown to have been cast, by manipulation, in favour of the Respondent No. 1 and whatever account has been given so far the Respondent No. 1 is concerned he has in fact polled about 2500 votes less than that and by such manipulation and under hand dealing the Respondent No. 1 was shown to have secured 2824 votes in excess of the petitioner and after the same was declared by the Returning Officer, the election agent of the petitioner in writing protested before the Returning Officer and demanded for a recounting but the same was rejected illegally. The demand for recounting in writing was made around 4. The demand for recounting in writing was made around 4. 30 p. m. on dated 12-3-95 as per annexure-11 which was rejected illegally and the Respondent No. 1 was declared elected from the 24-Korei Assembly Constituency around 7 p. m. Thus the petitioner became a victim of the underhand dealings, the conspiracy and the manipulations and unfair means illegal procedure adopted by the Returning Officer, Asst. Returning Officer and others in-charge of counting in connivance with the Respondent No. 1. The rejection of the prayer for recounting is illegal, on a proper counting of the votes the petitioner emphatically asserts that he will be found to have secured not less than 5000 votes more than the Respondent No. 1 and he is entitled to be declared duly elected. " ( 5 ) ONLY respondent No. 1 has contested the case. In this written statement he has denied the allegations relating to improper counting of ballot papers. The denial of respondent No. 1 relating to other allegations need not be noticed, as the question relating to improper counting is the only surviving question to be decided in this petition ( 6 ) AT the time of trial, the petitioner apart from adducing evidence in support of the allegations relating to the alleged bungling in the matter of bundling of ballot papers has also introduced evidence to prove other irregularities in the matter of counting. More particularly, the witnesses have stated about the lack of seals on the ballot boxes, discrepancies in the number of ballots found inside the ballot boxes and the illegal rejection of ballots in favour of the petitioner and illegal acceptance of ballots in favour of respondent No. 1. Many of the witnesses have stated that many ballots where major portion of 'mark' was on the 'hand' symbol of the petitioner, were illegally counted in favour of other candidates and, on the other hand, many ballots where major portion of the 'mark' has been put on the other symbols were illegally counted in favour of respondent No. 1. It is further stated by the witnesses that many outsiders who were the supporters of respondent No. 1, were allowed inside the counting hall and illegally allowed to participate in the process of counting. It is further stated by the witnesses that many outsiders who were the supporters of respondent No. 1, were allowed inside the counting hall and illegally allowed to participate in the process of counting. According to the learned counsel for the petitioner, all these illegalities and irregularities in the process of counting have materially affected the result of the election so far as the successful candidate is concerned. However, a careful perusal of the election petition indicates that the petitioner had not specifically pleaded about the aforesaid illegalities/irregularities. Though he has alleged that the counting officials were partial towards respondent No. 1 being his supporters or relations, he had not stated specifically about the nature of irregularity and illegality committed by the counting officials. Section 81 (i) (a) of the Act requires that the election petition must contain a concise statement of material facts. Except vaguely stating that the result of the election has been materially affected by irregularities and illegalities in the counting and except pointing about the alleged irregularities in the matter of bundling of ballots after the ballots had been sorted out candidate-wise, the petitioner has not specifically alleged about the nature of irregularity or illegality and particularly relating to illegal acceptance of votes in favour of respondent No. 1, though major portion of the 'mark' had been put on the symbol of other candidates and regarding the illegal rejection of votes in favour of the petitioner though major portion of the 'mark' had been put on the symbol of the petitioner, as now claimed in the evidence. In the absence of any concise statement relating to such facts, it would not be proper to refer to such evidence on record. The only allegation worth consideration is relating to the alleged illegalities/irregularities in the matter of bundling of votes after the ballots had been sorted out candidate-wise. ( 7 ) THE petitioner has examined P. Ws. 1 to 13 who are the counting agents in respect of table Nos. 10, 2, 3, 13, 4, 9, 8, 12, 1, 11, 11, 6 and 7 respectively. Besides the above, the petitioner has examined his own brother who was his Election Agent as P. W. 14 and himself as P. W. 15. Several other witnesses, such as P. Ws. 1 to 13 who are the counting agents in respect of table Nos. 10, 2, 3, 13, 4, 9, 8, 12, 1, 11, 11, 6 and 7 respectively. Besides the above, the petitioner has examined his own brother who was his Election Agent as P. W. 14 and himself as P. W. 15. Several other witnesses, such as P. Ws. 16 to 21, were examined on behalf of the petitioner in support of the allegations relating to corrupt practice, but in view of the fact that subsequently the petitioner has filed an application giving up such allegations, it is unnecessary to refer to the evidence of P. Ws. 16 to 21. Nine witnesses have been examined on behalf of respondent No. 1 who are counting agents in respect of table Nos. 14, 1, 6, 3, 11, 2, 12, 9 and 10 respectively. Apart from the oral evidence, the petitioner has also exhibited several documents, out of which Ext. 1 purports to be the petition filed by the Election Agent of the petitioner before the Returning Officer for recounting which was rejected. The other documents relate to protest of the petitioner objecting to the selection of many persons as Counting Supervisors or other counting officials and also objecting to the place of counting. ( 8 ) BEFORE proceeding to discuss the matter on merit, it is necessary to notice the relevant law relating to prayer for recounting in an election petition. Shri B. Pal, the learned Senior Counsel, has with meticulous care traced and cited numerous decisions of the Supreme Court as well as of this Court on the question relating to recounting of ballots in an election dispute. The history of election law in the matter relating to recounting of ballots is replete, with several decisions. However, it is unnecessary to refer to all such decisions, as most of the decisions have been referred to and discussed by G. B. Patnaik, J. (as he then was) in the decision of this Court reported in AIR 1993 Orissa 223 (Smt. Nakka Bhikhyamana v. Sri Aurovindo Dhali. However, it is unnecessary to refer to all such decisions, as most of the decisions have been referred to and discussed by G. B. Patnaik, J. (as he then was) in the decision of this Court reported in AIR 1993 Orissa 223 (Smt. Nakka Bhikhyamana v. Sri Aurovindo Dhali. Law is now well settled that ordinarily a Court does not direct for inspection of ballots and a recount of votes unless the material facts on the basis of which inspection of documents (that is to say, the used ballot papers) is sought for, are clearly and specifically pleaded and the Court is satisfied that it is necessary to allow inspection of such used ballot papers and to recount the same in the interest of justice. In normal circumstances, a Court should not permit a roving or fishing enquiry unless it is satisfied on the basis of materials on record that a recount is necessary. ( 9 ) SHRI Pal appearing for respondent No. 1 has submitted that no application for recounting had been filed before the Returning Officer as contemplated in Rule 63 of the Conduct of Election Rules, 1961 (hereinafter referred to as the "rules" ). It is, therefore, submitted that in the absence of any such petition, the subsequent election petition for recounting should be considered to be as not maintainable. The learned counsel has relied upon the decision reported in (1997) 6 SCC 66 : AIR 1997 SC 3072 (Smt. Ram Rati v. Saroj Devi) in support of such contention. Though Rule 76 of the M. P. Panchayat Election Rules involved in the said case was somewhat similar to Rule 63, it is not clear as to whether there was any other provision containing specific embargo on the Tribunal to entertain petition for recounting in the absence of specific petition for recounting before the Returning Officer. Rule 63 contemplates that the candidate or his counting agent may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. Sub-rule (3) empowers the Returning Officer to allow the application in whole or in part or reject it in toto if it appears to him to be frivolous or unreasonable. Sub-rule (4) provides that every decision of the Returning Officer under sub-rule (3) shall be in writing and contain the reasons therefor. Sub-rule (3) empowers the Returning Officer to allow the application in whole or in part or reject it in toto if it appears to him to be frivolous or unreasonable. Sub-rule (4) provides that every decision of the Returning Officer under sub-rule (3) shall be in writing and contain the reasons therefor. However, it is nowhere contemplated either in the Rules or in the Act that in the absence of any application under Rule 63, the subsequent petition contemplated under Section 100 of the Act is barred. If no application is filed before the Returning Officer for recounting and subsequently such a petition is filed in Court under Section 101 of the Act, the Court depending upon the facts and circumstances of a given case may justifiably conclude that the allegations subsequently made are afterthought and unworthy of credence, but it cannot be said that no such application for recounting can be filed in an election petition unless it is preceded by an application before the Returning Officer, as contemplated in Rule 63. ( 10 ) THE petitioner, apart from relying upon oral evidence has sought to prove allegation relating to irregularity in counting by producing Ext. 1. This document purports to be the application of the Election Agent of the petitioner for recounting. It is also stated that it contains the order of rejection. It is claimed that such an application was filed before the Returning Officer at 4. 30 p. m. on 12-3-1995 and the endorsement "rejected" was made on the said petition by the Returning Officer. In normal circumstances, such an application is to be dealt with by the Returning Officer in accordance with Rule 63. Rule 63 (4) contemplates that such decision of the Returning Officer shall be in writing and contain the reasons therefor. Though the simple endorsement, "rejected" can be taken to be an order in writing, it is apparent that such order does not contain any reasons. The Returning Officer though cited as a witness in the list of witnesses furnished by the petitioner, has not been examined. It is difficult to visualise that the Returning Officer would have passed an order of rejection by a single word on the application itself without indicating any reason which was required to be furnished as per the Rules. The Returning Officer though cited as a witness in the list of witnesses furnished by the petitioner, has not been examined. It is difficult to visualise that the Returning Officer would have passed an order of rejection by a single word on the application itself without indicating any reason which was required to be furnished as per the Rules. It is further difficult to visualise that the Returning Officer would also handover the petition along with endorsement to the Election Agent of the petitioner. This document has been produced by the witness at the time of deposition. It is, of course, true that a Xerox Copy of such document was filed along with the election petition as Annexure-11. Be that as it may, in normal course it was expected that such application as well as the order passed on the basis of application should remain in the custody of the Returning Officer. A doubt arises as to whether such an application had, in fact, been filed. The Returning Officer would have been the best witness to depose about such application and order. At any rate, assuming that such an unusual course had been adopted by the Returning Officer, one would have expected the petitioner to make necessary averment in the election petition about such uncommon exercise. The relevant assertion in the election petition is as follows :-". . . . . . . . . . . THE demand for recounting in writing was made around 4. 30 P. M. on dated 12-3-95 as per Annexure 11 which was rejected illegally. . . . . . . . . . . . . "it is not specifically averred that the rejection order was passed on the application itself and the application containing the endorsement relating to rejection had been handed back to the Election Agent of the petitioner. There is a presumption that official acts must have been done in accordance with the official procedure. The unexpected action of the Returning Officer was not contemplated. For the aforesaid reasons, it is difficult to believe that, in fact, Ext. 1 was the application filed before the Returning Officer at 4. 30 P. M. on 12-3-1995 as claimed and the order of rejection was passed on such petition. The unexpected action of the Returning Officer was not contemplated. For the aforesaid reasons, it is difficult to believe that, in fact, Ext. 1 was the application filed before the Returning Officer at 4. 30 P. M. on 12-3-1995 as claimed and the order of rejection was passed on such petition. ( 11 ) EVEN assuming that such a petition was filed and was rejected, the statement made in such petition appears to be inconsistent with subsequent averment in the election petition as well as oral evidence. In Ext. 1, the allegation was that 24 valid votes in favour of respondent No. 1 had been counted as 25, whereas 25 valid votes for petitioner were being counted as 24 votes. In the election petition, it is stated that 24 or less votes had been counted as 25 in favour of respondent No. 1 and 26 or more in favour of petitioner were being counted as 25. Though the contradictions may appear to be superficial and insignificant, in the context of election law, such contradictions cannot be ignored. ( 12 ) IF actually such illegality in bundling was being carried on in all the counting tables in course of the entire process of counting, one would have expected contemporaneous objection in writing by the counting agent or at least by the Election Agent of the petitioner, and the Election Agent in normal course would not have awaited till end of the counting to file the so-called application for recounting under Ext. 1. It is claimed that the Election Agent had raised objection before the Assistant Returning officer who was in charge of the central table, but he was advised to file appropriate application before the Returning Officer. Such a bald statement of the Election Agent of the petitioner cannot be accepted on its face value and the petitioner could have examined the official concerned. It is, of course, argued by the counsel for the petitioner that most of the officials in charge of counting were partial towards respondent No. 1, as respondent No. 1 was the President of the Janata Dal, the party in power. In this context, it is also pointed out that even before voting had taken place and process of counting had begun, the petitioner had written numerous letters/representations to the Election Commission and other authorities objecting to the entrustment of such work to some persons. In this context, it is also pointed out that even before voting had taken place and process of counting had begun, the petitioner had written numerous letters/representations to the Election Commission and other authorities objecting to the entrustment of such work to some persons. Even though the petitioner had made such protest much prior to the counting, it cannot be assumed that all the counting officials had ganged-up against the petitioner. ( 13 ) P. Ws. 1 to 13 who were the counting agents in respect of several counting tables have, almost in one voice, stated that at the time of bundling of ballot papers, 24 or less votes in favour of respondent No. 1 were being counted as 25, and 26 or more votes in favour of the petitioner were being counted as 25. It has been submitted by Shri B. B. Ratho, the learned Senior Counsel for the petitioner, that such oral evidence of the witnesses of the petitioner is consistent and nothing has been elicited in cross-examination of such witnesses to discard their sworn testimony. The learned counsel for respondent No. 1 has submitted that such evidence has been rebutted by the oral testimony of R. Ws. 1 to 9, who were also present at the time of counting. He has further submitted that the evidence of P. W. 14, the Election Agent of the petitioner, reveals as if objections were filed by him from time to time before the Assistant Returning Officer protesting about the various irregularities in the process of counting. It is to be noted that the petitioner has not bothered to prove any such written objection allegedly filed before the Assistant Returning Officer and not a single counting official has been examined. The learned counsel for respondent No. 1 has placed particular reliance upon the observation made by the Supreme Court in the decision reported in AIR 1976 SC 1886 , Kanhaiyalal v. Mannalal and submitted that in the absence of independent corroboration in the shape of contemporaneous document, such oral evidence cannot be accepted. In the aforesaid Supreme Court decision it was observed :-"oral testimony therefore will have to be judged with the greatest care and an electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source. In the aforesaid Supreme Court decision it was observed :-"oral testimony therefore will have to be judged with the greatest care and an electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source. "it has been further observed in the said decision :-"an election dispute is not a private feud between one individual and another. The whole constituency is intimately involved in such a dispute. Shaky and wavering oral testimony of a handful of witnesses cannot still the dominant voice of the majority of an electorate. "in the decision reported in AIR 1975 SC 290 , Rahim Khan v. Khurshid Ahmed, it was observed :-"21. We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. . . . . . . . . . . "the oral evidence in the present case appears to be mechanical and routine in nature. The assertions in the election petition can best be described as beautifully vague". It is doubtful as to whether an application for recounting had been made. The materials on record fall far short of the exacting standard prescribed in such cases by the catena of decisions of the Supreme Court as well as of this Court. An overall perusal of the entire materials on record does not justify the extraordinary course of directing a recount of the ballot papers. ( 14 ) FOR the aforesaid reasons, I do not find any merit in this election petition, which is accordingly dismissed. Since the petitioner has given (sic) he allegations relating to corrupt practice, thus relieving the respondent No. 1 from the obligation of examining many witnesses relating to that aspect and since the expenses incurred by the petitioner appear to be much higher than the expenses incurred by the respondent No. 1, I do not intend to burden the petitioner further and, therefore, direct that the parties shall bear their own costs. Petition dismissed.