JUDGMENT R.L. Khurana, J.—The petitioner and respondents No. 1 to 7 contested the election to the 9th Himachal Pradesh Legislative Assembly from 33 Kutlehar Assembly Constituency. The petitioner was a Congress candidate, while respondent No. 1 was a candidate of Bhartiya Janta Party. Respondents No. 2 to 7 were either independent candidates or belonging to other political parties. Polling was held on 28.2.1998. The counting of votes took place on 3.3.1998. Respondent No. 1 was declared elected. He secured 11,660 votes as against 11,657 secured by the petitioner. There was thus a margin of only three votes. 2. The election of respondent No. 1 has been assailed by the petitioner by virtue of the present petition preferred under Sections 80 and 81 read with Sections 100 and 101 of the Representation of People Act, 1951 (hereinafter referred to as the Act) by contending that irregularities were committed during the counting of the votes. The following reliefs have been sought by the petitioner: (a) Recounting of votes; (b) Inspection of postal, tendered and rejected votes; (c) Setting aside the election of respondent No. 1 and declaring the same as void; and (d) Declaring the petitioner as elected from 33-Kutlehar Assembly Constituency to the Himachal Pradesh Assembly. 3, The averments as to irregularities alleged to have been committed during the course of counting and for making out a case for recounting of votes, are contained in paras 10 to 13 of the petition, which read as under : "10. That the counting staff after opening the ballot boxes on the tables, took out and separated the ballot papers for the Assembly Constituency as well as for the Parliamentary Constituency. After separating the votes, the votes taken out from each ballot box were counted without determining the same candidate wise. Then the number of the ballots taken out were entered in Form 20-A under Rules 56-b(7) of the Conduct of Election Rules, 1961. As per the Form 20-A, certified copy of which is added herewith as Annexure P/2, the total number of ballot papers polled from all the polling stations of the Assembly Constituency were shown as 35,310, while the votes actually counted from all these polling stations were shown as 35,318, which is evident from the statement Round-wise detailed result of counting, a certified copy of which is added as Annexure P/ 3. Thus 8 votes more were counted than actually taken out from the ballot boxes for the Kutlehar Assembly Constituency. This cannot happen in any circumstances unless there is irregularity in the counting and this difference of votes clearly shows that the counting was not properly done and has materially affected the election of the respondent No. 1. These irregularities and illegalities were committed during the counting in favour of the respondent No. 1 by the members of the counting staff. 11. That Shri R. S. Sharma was the Returning Officer of 33-Kutlehar Assembly Constituency. The counting was completed in six rounds and a number of irregularities and illegalities were committed during the counting of votes on various tables of the Assembly Constituency. Further the votes of the petitioner were mixed in the bundles of respondent No. 1 and many votes polled in favour of the petitioner were illegally rejected. Further the votes polled, which were required to be rejected were counted in favour of the respondent No. 1. The counting for the first two rounds were held almost correctly but thereafter the Returning Officer and the other members of the counting staff started showing the partial attitude towards the petitioner as the result of all the Assembly Constituencies in the Himachal Pradesh had been declared and trend of the voting and results at the national level for the Parliamentary Constituencies had also started becoming available, further the result of this Assembly Constituency would have affected the formation of the State Government. The details of the irregularities and illegalities committed during the counting in various rounds is given as under: (i) That on table No. 1 Shri Budhishwar Pal r/o VPO Raipur Maidan, Tehsil Bangana was the counting agent of the petitioner. He attended the counting from the very beginning till its completion. As per the procedure adopted after each round of counting, the doubtful votes were brought to the table of the Returning Officer from all the 6 tables of the Assembly Constituency and at the end of each round, the Returning Officer used to decide the votes on each table in each round to be accepted/rejected. From table No. 1 about 2-3 ballot papers of the petitioner in each round were rejected by the Returning Officer on the ground that they were having the identification marks. These votes related to round No. 3-6. From table No. 1 about 2-3 ballot papers of the petitioner in each round were rejected by the Returning Officer on the ground that they were having the identification marks. These votes related to round No. 3-6. In fact these votes were having only a slight smug of ink due to the handling of the ballot papers by the electors. Further there were about 40 votes in rounds No. 3 to 6 which were duly stamped in favour of the petitioner were rejected on the ground that these were partially stamped in the favour of the petitioner. In fact these votes were clearly marked in favour of the petitioner and one margin of the impression of seal had slightly touched the symbol of the other candidate. Further the Returning Officer has wrongly accepted the 5-6 ballot papers in each round from Round No. 3-6 in favour of respondent No. 1 which was liable to be rejected due to double marking. A few in favour of the respondent No. 1 and other in favour of the other candidates. Further on Table No. 1, the Members of the Counting Staff mixed about 4-5 ballot papers polled in favour of the petitioner in the bundles of the respondent No. 1 and other candidates in each round. About 20 votes of the petitioner were mixed in the bundles of Ram Dass Malanger i.e. respondent No. 1 and other candidates in rounds No. 3-6. Whenever the objections were raised by the counting agent of the petitioner in this regard and asked for the showing of the ballot papers the counting staff showed only one ballot paper. The Counting Staff used to put these votes of the petitioner in between the bundles of respondent No. 1 and other candidates and counted in their favour. Thus the petitioner was duped of the double number of the votes mixed in the bundle of respondent No. 1 and other candidates. Another irregularity committed by the members of the counting staff on this table as that they put 23 to 24 votes of the respondent No. 1 and treated it as the bundle consisting of 25 votes in favour of respondent No. 1, thus in the bundles of 25 votes of the respondent 3 to 4 votes in each bundle were less. In this way, the members of the counting staff increased the votes of respondent No. 1. In this way, the members of the counting staff increased the votes of respondent No. 1. Similarly in the bundles of the petitioner, the members of the counting staff put 27-28 votes and treated them as a bundle of 25 votes, thus this decreased the votes of the petitioner by 2 to 3 votes in each bundle. A pertinent objection against this was raised by the counting agents of the petitioner but the same was arbitrarily ignored. This irregularity has also materially affected the election of the respondent No. 1. (ii) That on table No. 2, Mrs. Urmila Sharma, r/o Vill. Alsan PO Bhiambi, Tehsil Bangana was the counting agent of the petitioner. On this table also about 20 votes in rounds No. 3-6 which were polled in favour of the petitioner and were slightly smugged due to the mishandling of the ballot papers were illegally rejected treating it an identification mark. These votes were required to be counted in favour of the petitioner. Further on this table about 7-8 votes in each round were mixed with the bundles of the respondents during rounds number 3 to 6. (iii) That on table No. 3 Shri Dev Raj Sharma (Retired Capt) r/o Vil Piplu, PO Ghaloun, Tehsil Bangana, was the counting agent of the petitioner. On this table about 5-6 votes in each round were mixed in the bundles of respondent No. 1 and other candidates during round number 4-6. There were about 4-5 votes in each round which could not be ascertained in whose favour these votes were polled and were liable to be rejected were counted in favour of the respondent No. 1 by the counting staff at the table. (iv) That on table No. 4 Shri Surender Prahar VPO-Barnoh Teh. and Distt. Una, was the counting agent of the petitioner. Further that there are also number of ballot papers having the stamp on back side of the symbol of respondent No. 1 but no stamp was on the front side where the symbols and the names were printed and the counting agent of the petitioner had made request to treat these votes as rejected votes and send the same to the Returning Officer for decision. But the counting staff was adamant and they were mixing these votes in the bundles of the respondent No. 1 and treating these votes polled in favour of respondent No. 1. But the counting staff was adamant and they were mixing these votes in the bundles of the respondent No. 1 and treating these votes polled in favour of respondent No. 1. There are about 8-10 such votes in each round which were liable to be rejected were counted in favour of respondent No. 1. On this table 4-6 votes of the petitioner in each round were mixed in the bundle of respondent No. 1 during 3-6 round. Further on this table, about 3-4 votes of the petitioner in each round were rejected though they were stamped in favour of the petitioner but due to wrong folding of the ballot, the impression of the seal of the stamp slightly appeared in the column of other candidates. Each time when the counting agents raised objections to the counting staff, they used to threaten them to keep quite and watch the counting and that they were not mixing the votes and were counting them correctly, and if the counting agent would still insist they would be thrown out of the counting hall. Another irregularity committed by the members of the counting staff on this table was that they put 23 to 24 votes of the respondent No. 1 and treated it as the bundle consisting of 25 votes in favour of the respondent No. 1, thus in the bundle of 25 votes of the respondent only 3 to 4 votes in each bundle were less. In this way, the members of the counting staff increased the votes of respondent No. 1. Similarly in the bundle of the petitioner, the members of the counting staff put 27-28 votes and treated them as a bundle of 25 votes, thus this decreased the votes of the petitioner by 2 to 3 votes in each bundle. This irregularity has also materially affected the election of the respondent No. 1. (v) Further on table No. 5 Ram Pal Saini VPO-Dangehra Tehsil and Distt. Una was the counting agent of the petitioner and the attended the counting on that table throughout the counting. This irregularity has also materially affected the election of the respondent No. 1. (v) Further on table No. 5 Ram Pal Saini VPO-Dangehra Tehsil and Distt. Una was the counting agent of the petitioner and the attended the counting on that table throughout the counting. The Returning Officer had wrongly accepted the votes of respondent No. 1 which were carrying double stamps and those which were having impression of the stamp in between the lines of the symbols of the respondent No. 1 and another candidate and it could not be ascertained whether the votes were polled in favour of respondent No. 1 or other candidate. But these votes were treated as the votes polled in favour of the respondent No. 1 and were counted in his favour. The Returning Officer has accepted 15-20 votes in 3-4 rounds and about 20 votes in 5-6 rounds in favour of the respondent No. 1 though these votes were liable to be rejected. Further on this table the counting staff had avoided to show the ballot papers to Shri Ram Pal Saini VPO Dangehra Tehsil and Distt. Una the counting agent of the petitioner inspite of the repeated objections raised by him. The ballot papers were shown at two times and on one occasion 4 ballot papers of the petitioner were found in the bundle of respondent No. 1 and the same were taken out from the bundle of respondent No. 1 which were being counted at that time. The counting agent of the petitioner raised other objections but the counting staff did not listen to the requests of the counting agent of the petitioner to show him the ballot papers and told him that if he would insist to see the ballot paper it would cause disturbance to the counting staff and he would be turned out and further counting staff stated that they were tired and wanted to finish the counting as early as possible. On this the counting agent had no alternative but to remain a silent spectator. (vi) On table No. 6 Shri Krishan Chand Sharma VPO Badsala, Tehsil and Distt. Una was the counting agent of the petitioner. The counting agent of the petitioner on Table No. 6 raised on objection that some of the votes were stamped against none of the names and symbols of the candidates. (vi) On table No. 6 Shri Krishan Chand Sharma VPO Badsala, Tehsil and Distt. Una was the counting agent of the petitioner. The counting agent of the petitioner on Table No. 6 raised on objection that some of the votes were stamped against none of the names and symbols of the candidates. On this table, from round number 4 to 6 the Returning Officer had wrongly rejected in each round about 8 votes of the petitioner which were clearly polled in favour of the petitioner. The votes were rejected on the ground that it had been double marked, two times in the column of the petitioner. Further Returning Officer had counted 20 votes in each round in favour of the respondent No. 1 which were having the identification marks either of thumb impression or signature in the column of the respondent No. 1 instead of having seal of official stamp. The members of counting staff had also mixed total 20 to 30 votes of the petitioner in the bundles of respondent No. 1 and other candidates from rounds number 4-6. Though the video film was being made but the main focus was placed on the tables of the Parliamentary Constituency. The petitioner had objected and requested the Returning Officer to also filmise that of the Assembly Constituency so that if any irregularity is there that could be caught and later on rectified but the Returning Officer did not listen to this. Even he had stopped to take the movie when the crowd was present there after 5.00 p.m. and after the completion of the counting of Parliamentary Constituency, the counting staff of the Parliamentary Constituency was interfering in the counting process. Further the rejection and acceptance of ballot papers after each round was not filmised. (vii) The above submissions clearly prove that a large number votes polled in favour of petitioner have been wrongly and illegally rejected. Thus apart from recount, inspection of such rejected votes deserves to be allowed to the petitioner. 12. That the petitioner got majority of votes from the ballot papers taken out from the ballot boxes of all the polling booths despite various irregularities committed during the counting in favour of respondent No. 1 and against the petitioner. Thus apart from recount, inspection of such rejected votes deserves to be allowed to the petitioner. 12. That the petitioner got majority of votes from the ballot papers taken out from the ballot boxes of all the polling booths despite various irregularities committed during the counting in favour of respondent No. 1 and against the petitioner. The petitioner was said to have polled 11,657 votes while the respondent No. 1 was said to have polled 11,660 votes which were taken out from the ballot boxes. Total 160 postal ballot papers were counted. Out of them 30 were declared as invalid and 20 were said to have been polled in favour of the petitioner while other 94 ballot papers were said to have been polled in favour of the respondent No. 1. Approximately 15 to 20 declarations of the postal ballot papers were not duly signed/attested by the competent authority. 4 or 5 such postal ballot papers were not found in cover. Thus these ballot papers were liable to be rejected but the Returning Officer has counted the same in favour of the respondent No. 1. Besides about 20-30 postal ballot papers were received at the time when the counting was in progress, i.e. after 28.2.1998, thus these ballot papers could not have been counted and were liable to be rejected. But all these postal ballot papers which were received during the counting were counted in favour of respondent No. 1 and in violation of rules and the instructions issued by the Election Commission of India. Thus the election of the respondent No. 1 has been materially affected due to the counting of the postal ballot papers which were liable to be rejected. In view of above, apart from summoning and recounting these postal ballots, their inspection may also be granted to the petitioner. 13. That a perusal of form 20-A (Annexure P/2) clearly indicates that the total number of votes found in the Ballot boxes of 82 Polling Stations pertaining to this Constituency were 35310 whereas a perusal of statement of Round wise detailed result of counting in 33 Kutlehar Assembly Constituency (copy of which is added herewith as Annexure P/3) indicates that the total number of valid and rejected votes counted for the purpose of declaring the result were 35318. The above contemporaneous record/evidence clearly indicates that there is an increase of 8 votes at the time of counting. The above contemporaneous record/evidence clearly indicates that there is an increase of 8 votes at the time of counting. In other words 8 more votes were counted when in fact these votes were never cast/polled at any of the Polling Stations. These 8 un-accounted for votes which have been counted in favour of respondent No. 1 have materially affected the election and the election result of respondent No. 1 as the difference of margin of victory is only of 3 votes. These excess votes were counted by the counting staff simply to help him in advancing his Election prospects when in fact these were fake votes. The submission made in this para go to the very root of the entire matter and render the election of respondent No. 1 void. In other words the election result of respondent No. 1 has therefore materially been effected." 4. The petitioner has further averred in paras 20 and 21 of his petition as under: "20. That when the petitioner was verbally objecting to the irregularities in counting process the Returning Officer told him to apply for recount after the counting was over. The petitioner moved an application before the Returning Officer after the completion of the counting as the margin of votes was very much less and he had doubts in the counting of votes by the counting staff, that he was not satisfied with the procedure and the process of counting and the recounting may be ordered. The said application of the petitioner was rejected by the Returning Officer there and then without assigning any reason by passing completely a non speaking order in the margin of the application itself. Thereafter the petitioner applied for a certified copy of the order passed on the application when a copy of the application bearing order dated 3.3.1998 passed by the Returning Officer in the margin alongwith other detailed order purported to have been passed thereon were supplied. Certified copy of the application alongwith the above order are added herewith as Annexure-P/5. A perusal of the application clearly indicates that the same was rejected by passing an order which exists in the margin thereof. The accompanying detailed order was passed afterwards. Certified copy of the application alongwith the above order are added herewith as Annexure-P/5. A perusal of the application clearly indicates that the same was rejected by passing an order which exists in the margin thereof. The accompanying detailed order was passed afterwards. Besides, in view of the order which was passed on the margin of the application itself, there was absolutely no occasion to pass separate order in a manner it has been done afterwards in this case. It is further substantiated by the fact that there is no indication of separate order having been passed in the order which was made in the margin of the application itself. Since the margin of votes polled in favour of respondent No. 1 and the petitioner was of 3 votes the petitioner had requested for re-count on this score as well, which constituted a reasonable demand/ground for re-count which was completely ignored as the same was not considered even in the detailed order purported to have been passed afterwards. Thus the application for recount has been rejected in an unreasonable and arbitrary manner, which has materially effected the election result of the returned candidate (respondent No. 1). 21. That a perusal of form 20-A (Annexure-P/2) reveals that 2 votes in Polling Station Nos. 10 and 78 (1 each) were shown as tendered votes. It may pertinently be added here that one more vote was also tendered in Polling Station No. 76 but the same has not been reflected in Form-20-A (Annexure-P/2). However, a perusal of form 16-A, (certified copy of which is added herewith as Annexure-P/6) clearly reveals that one more vote has also been tendered at Polling Station No. 176. The above submissions clearly prove that in all there were 3 tendered votes and the margin of victory of respondent No. 1 was by 3 votes. In view of this, these three tendered votes ought to have been counted in the prevailing situation. Non counting of these 3 tendered votes has also materially effected the result of election of respondent No. l (returned candidate). Besides inspection of these three tendered votes in the given circumstances also deserves to granted, which may be allowed." 5. Respondents No. 2 to 7, though served, did not put in appearance. They were accordingly proceeded against ex parte. 6. Besides inspection of these three tendered votes in the given circumstances also deserves to granted, which may be allowed." 5. Respondents No. 2 to 7, though served, did not put in appearance. They were accordingly proceeded against ex parte. 6. Respondent No. 1, while resisting and contesting the petition, denied the averments made in the petition with regard to the alleged irregularities during the process of counting. It was averred that no irregularity was committed during the course of counting. The counting was carried out in accordance with law and that no objection as to counting was raised either by the petitioner or his counting agents. The request for recounting made by the petitioner was rightly rejected by the Returning Officer by passing a speaking and reasoned order. It was further pleaded that total votes actually counted were 35, 318, which number is correct. The correctness of this figure was never challenged by the petitioner in his application dated 3.3.1998 made to the Returning Officer for recounting of votes. The mentioning of any figure other than 35,318 might have been due to some clerical error. Since the petitioner failed to object to the correctness of the total number of votes counted at the earliest and rather had accepted its correctness, he is estopped by his act and conduct in challenging its correctness at this stage. It was further averred that the petition lacked in material facts and particulars and it did not furnish a cause of action. Other objections raised were to the effect that the petition had not been properly verified and that a true copy of the petition had not been supplied to respondent No. 1. 7. A recrimination petition under Section 97 of the Act was also filed by the respondent No. 1 on 15.5.1998 being E.M.P. No. 9 of 1998, praying therein that in case this court allows the inspection of ballot papers including postal ballot papers and recounting thereof, the ballot papers tendered in his favour but which were not actually counted may be ordered to be counted in his favour. 8. Since there was a delay of about 14 days in making the recrimination petition, an application being E.M.P. No. 10 of 2000 was also made by the petitioner under Section 5, Limitation Act, 1963, for the condonation of the delay of 14 days. 8. Since there was a delay of about 14 days in making the recrimination petition, an application being E.M.P. No. 10 of 2000 was also made by the petitioner under Section 5, Limitation Act, 1963, for the condonation of the delay of 14 days. It is the admitted case of respondent No. 1 that he was served in the election petition on 6.4.1998 and that the recrimination petition was made on 15.5.1998. 9. Both these applications are being resisted by the petitioner, inter alia, on the ground of limitation and that no sufficient grounds have been made out for the condonation of the delay in making the recrimination petition. 10. On the basis of the pleadings of the parties, following preliminary issues were framed by this Court on 14.5.1998: 1. Whether the election petition lacks in material facts and particulars and does not furnish a cause of action, as alleged, if so to what effect? OPR 2. Whether the election petition has not been properly verified, if so to what effect? OPR 3. Whether true copy of the election petition has not been supplied to the respondents, if so to what effect? OPR 4. Relief. 11. During the course of hearing, on preliminary issues, learned Counsel for the respondent No. 1 did not press the preliminary issues No. 2 and 3, which were accordingly decided against the respondent No. 1. Issue No. 1 was found against the petitioner and consequent upon such findings, the petition was dismissed by this Court on 24.6.1998. 12. The findings of this Court were assailed by the petitioner before the Honble Supreme Court by way of an appeal being Civil Appeal No. 4085 of 1998. The Honble Supreme Court on 27.10.1999 Mahendra Pal v. Ram Das Malanger and others, 2000 (1) SCC 261, allowed the appeal preferred by the petitioner and after setting aside the findings of this Court on preliminary issue No. 1 has remanded the case to this court for being tried on merits. The Honble Supreme Court has observed : "We are of the opinion that the election petition did contain an adequate statement of material facts on which the allegations of irregularities or illegalities in counting were founded. The election petition therefore deserved to be tried on merits. We are unable to persuade ourselves to sustain the findings recorded by the learned Designated Judge on Issue No. 1. The election petition therefore deserved to be tried on merits. We are unable to persuade ourselves to sustain the findings recorded by the learned Designated Judge on Issue No. 1. We, however, refrain from expressing any opinion on the merits of the controversy between the parties as that would be a matter to be decided by the Designated Judge after affording an opportunity to the parties to lead evidence in support of their respective pleadings. Since the election petition was dismissed without trial on deciding Issue 1 against the appellant, with which finding we have not agreed, we set aside the finding of the High Court on Issue 1 and direct that the election petition be now tried on merits in accordance with law. The learned Designated Judge is requested to expeditiously dispose of the petition. There shall be no order as to costs insofar as this appeal is concerned." (Emphasis supplied) 13. After the receipt of the case on remand, following issues were framed on 24.5.2000, on the merits of the case: 1. Whether any irregularities were committed during the course of counting of votes, as alleged? If so its effect? OPP 2. Whether the election respondent No. 1 from 33—Kutlehar Assembly Constituency has been materially affected and is liable to be set aside, as alleged? OPP 3. If issue No. 2 is decided in the affirmative, whether the petitioner is liable to be declared as elected from 33-Kutlehar Assembly Constituency, as alleged? OPP 4. Whether the recrimination petition is within time? OPR 5. If issue No, 4 is decided in the negative, whether there are sufficient grounds for the condonation of delay? OPR 6. Whether the application made under Section 5 of the Limitation Act for the condonation of delay in making the recrimination petition is maintainable? OPR 7. Relief. 14. The parties have led oral as well as documentary evidence. The oral evidence led by the petitioner consists of his own statement as PW 2 and the statement of Shri K.K. Pant, Deputy Commissioner-cum-District Election Officer, Una. The oral evidence of the respondent No. 1 consists of his own statement as RW 1. 15. I have heard the learned Counsel for the parties and have, also gone through the record of the case. My findings on the above issues are as under: Issues No. 1 and 2. 16. The oral evidence of the respondent No. 1 consists of his own statement as RW 1. 15. I have heard the learned Counsel for the parties and have, also gone through the record of the case. My findings on the above issues are as under: Issues No. 1 and 2. 16. Both these issues being corelated and inter-connected are being taken up for disposal and determination together. 17. Before going into the merits of the present case, it will not be out of place to detail and state the law with regard to the power vested in the court seized of an election dispute to order for inspection and recount of the ballot papers. For the exercise of power to order inspection and recount of ballot papers, the Hon’ble Supreme Court in V.S. Achuthanandan v. P.J. Francis and another, JT 2001 (2) SC 337 has restated the following principles: "1. The secrecy of the ballot is sacrosanct and shall not be permitted to be violated lightly and merely for asking or on vague and indefinite allegations or averments of general nature. At the same time purity of election process has to be preserved and therefore inspection and recount shall be permitted but only on a case being properly made out in that regard. 2. A petition seeking inspection and recount of ballot papers must contain averments adequate, clear and specific making out a case of improper acceptance or rejection of votes or non-compliance with statutory provisions in counting. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose. 3. The scheme of the Rules prescribed in Part V of the Conduct of Election Rules, 1961 emphasises the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly overruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83(1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts. 4. It is in the light of this background that Section 83(1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts. 4. The election petitioner must produce trustworthy material in support of the allegations made for a recount enabling the court to record a satisfaction of a prima facie case having been made out for grant of the prayer. The Court must come to the conclusion that it was necessary and imperative to grant the prayer for inspection to do full justice between the parties so as to completely and effectually adjudicate upon the dispute. 5. The power to direct inspection and recount shall not be exercised by the Court to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out material for declaring the election to be void. 6. By mere production of the sealed boxes of ballot papers or the documents forming part of record of the election proceedings before the Court the ballot papers do not become a part of the Court record and they are not liable to be inspected unless the Court is satisfied in accordance with the principles stated hereinabove to direct the inspection and recount. 7. In the peculiar facts of a given case the court may exercise its power to permit a sample inspection to lend further assurance to the prima facie satisfaction of the court regarding the truth of the allegations made in support of a prayer for recount and not for the purpose of fishing out materials." 18. In Satyanarain Dudhani v. Uday Kumar Singh and others, AIR 1993 SC 367, it was held that secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. Only when the court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered. When there is no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition. (Emphasis supplied) 19. When there is no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition. (Emphasis supplied) 19. In P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and others, AIR 1989 SC 640, the petitioner therein had contested the election for the post of President of a Panchayat in Tamil Nadu. In the election, the first respondent was declared elected. The petitioner challenged the election on the ground that while counting, the Returning Officer had wrongly treated some valid votes cast in his favour as invalid votes and certain invalid votes, which were cast in favour of the first respondent, as valid votes and that the Returning Officer had not permitted the petitioners agents to have scrutiny of the ballot papers at the time of counting. The Tribunal after recording the evidence of all candidates and the Assistant Returning Officer ordered recount of votes. On recounting of votes, it was found that there was no difference in the number of votes secured by the petitioner. However, insofar as the first respondent was concerned, he had secured only 528 votes as against 649 votes he was originally held to have secured. 121 votes cast in his favour were found to be invalid votes. Based on the figures of recount, the petitioner was declared elected as he had secured 28 votes more than the first respondent on recount. The order of the Tribunal was assailed by the first respondent by way of a Civil Revision before the High Court of Madras. A learned Single Judge allowed the Revision Petition and held that the Tribunal had erred in ordering recount of votes when the petitioner had not made out a prima facie case for an order of recount of votes cast. The matter was taken in appeal by the petitioner before the Honble Supreme Court. While dismissing the appeal and upholding the order of the High Court, the Honble Supreme Court held: "Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. While dismissing the appeal and upholding the order of the High Court, the Honble Supreme Court held: "Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes." 20. In S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and others, AIR 1980 SC 1362, it was held by the Honble Supreme Court, as under : "It was, however, contended that apart from the prohibition enacted in Section 94 ensuring secrecy of ballot, the order dated October 25, 1977, is erroneous and unsustainable on facts disclosed in the petition and the evidence recorded till the date of the order. It was contended that the allegations in this behalf in the election petition are vague and wholly devoid of particulars. Says, Mr. Mridul, that virtually the petitioners themselves confess this position when they say that they were hardly in a position to make any specific assertion, a fact demonstrably established, that the election petitioners were not in a position to state the exact method and process adopted by the returning officer and his associates in tampering with the postal ballots. Says, Mr. Mridul, that virtually the petitioners themselves confess this position when they say that they were hardly in a position to make any specific assertion, a fact demonstrably established, that the election petitioners were not in a position to state the exact method and process adopted by the returning officer and his associates in tampering with the postal ballots. Undoubtedly, in para 18 of the petition the election petitioners have said that they are not in a position to state the exact method and process adopted by the returning officer and his accomplices to tamper with the postal ballots. This is in substance a petition for recount. True, recount cannot be ordered just for the asking. A petition for recount after inspection of the ballot papers must contain an adequate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties an inspection of the ballot papers is necessary. The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void. Only 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." 21. Again, in N. Narayanan v. S. Semmalai and others, AIR 1980 SC 206, the election of the returned candidate was challenged on the ground that there were a number of errors in the counting of votes and that the electoral roll itself was inaccurate. The petitioner sought recount of votes. The High Court ordered a recount 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 the recount the High Court was also influenced by the fact that the margin of the returned candidate was only 19 votes. In ordering the recount the High Court was also influenced by the fact that the margin of the returned candidate was only 19 votes. The order of the High Court was assailed before the Honble Supreme Court by the returned candidate. The Honble Supreme Court reversed the order passed by the High Court and after referring to various decisions on the point, held : “The court would be justified in ordering a recount of the ballot papers only where : (1) The election petition contains an adequate statement of all the material facts on which the allegations of irregularity or 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." 22. Thus, the well settled legal position is that recount of votes can be ordered very rarely and on specific allegations in the pleadings in the Election Petition that illegality or irregularity was committed while counting. The petitioner, who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the allegations, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of election has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties. [See Vadivelu v. Sundaram and others, AIR 2000 SC 3230]. 23. The present case, therefore, is required to be examined in the light of the above well settled legal position. 24. It may be stated at the very outset that no evidence has been led by the petitioner in support of the allegations of illegality and/or irregularity alleged to have been committed during the course of counting as detailed in para 11 of the petition. 24. It may be stated at the very outset that no evidence has been led by the petitioner in support of the allegations of illegality and/or irregularity alleged to have been committed during the course of counting as detailed in para 11 of the petition. So much so that the petitioner himself, while appearing as PW 2 is silent on these allegations. Nor the respondent No. 1, while appearing as RW 1 has been cross-examined on this aspect. 25. During the course of hearing, the learned Counsel for the petitioner has confined himself only to the following three irregularities alleged to have been committed during the course of counting:— (i) Non-counting of tendered votes; (ii) Wrong counting of postal ballots; and (iii) As against 35,310 ballots shown to have been issued to the voters during the polling, 35,318 votes have been shown as polled and counted. 26. Section 81 of the Act provides that election petition calling in question any election may be presented on one or more grounds specified in sub-sections (1) and (2) of Section 100 and Section 101 of the Act. It appears that the present election petition calls in question the election of respondent No. 1 on the ground specified in sub-section (l)(d)(iii) of Section 100 and a declaration that the petitioner has been duly elected is sought under Section 101(a) of the Act. 27. Section 100 (l)(d)(iii) of the Act, inter alia, provides that if the result of the election has been materially affected by the improper reception or refusal of a vote or by the reception of any vote which is void, the court shall declare the result of the returned candidate to be void. Section 101(a) of the Act further provides that if the court finds that, in fact, the petitioner has received a majority of votes, it shall, after declaring the election of the returned candidate to be void further declare that the petitioner has been duly elected. 28. The petitioner has averred in para 21 of his petition with regard to the "tendered votes* as under : "That a perusal of form 20-A (Annexure-P/2) reveals that 2 votes in Polling Station Nos. 10 and 78 (1 each) were shown as tendered votes. It may pertinently be added here that one more vote was also tendered in Polling Station No. 76 but the same has not been reflected in Form-20-A (Annexure-P/2). 10 and 78 (1 each) were shown as tendered votes. It may pertinently be added here that one more vote was also tendered in Polling Station No. 76 but the same has not been reflected in Form-20-A (Annexure-P/2). However, a perusal of form 16-A, (certified copy of which is added herewith as Annexure-P/6) clearly reveals that one more vote has also been tendered at Polling Station No. 176. The above submissions clearly prove that in all there were 3 tendered votes and the margin of victory of respondent No. 1 was by 3 votes. In view of this, these three tendered votes ought to have been counted in the prevailing situation. Non counting of these 3 tendered votes has also materially effected the result of election of respondent No.l (returned candidate). Besides inspection of these three tendered votes in the given circumstances also deserves to granted, which may be allowed." 29. Rule 42 of the Conduct of Election Rules, 1961 (hereinafter referred to as the Rules) deals with "Tendered Votes". It provides as under: "Tendered votes.— (1) If a person representing himself to be a particular elector applies for a ballot paper after another person has already voted as such elector, he shall, on satisfactorily answering such questions relating to his identity as the presiding officer may ask, be entitled, subject to the following provisions of this rule, to mark a ballot paper (hereinafter in these rules referred to as a "tendered ballot paper") in the same manner as any other elector. (2) Every such person shall, before being supplied with a tendered ballot paper, sign his name against the entry relating to him in a list in Form 15. (3) A tendered ballot paper shall be the same as the other ballot papers used at the polling except that— (a) such tendered ballot paper shall be serially the last in the bundle of ballot papers issued for use at the polling station; and (b) such tendered ballot paper and its counterfoil shall be endorsed on the back with the words tendered ballot paper by the presiding officer in his own hand and signed by him. (4) The elector, after marking a tendered ballot paper in the voting compartment and folding it, shall, instead of putting it into the ballot box, give it to the presiding officer, who shall place it in a cover specially kept for the purpose." 30. (4) The elector, after marking a tendered ballot paper in the voting compartment and folding it, shall, instead of putting it into the ballot box, give it to the presiding officer, who shall place it in a cover specially kept for the purpose." 30. Rule 56 of the Rules, deals with "counting of votes". The proviso to sub-rule (6) of Rule 56 prohibits the opening of the cover containing a "tendered vote" and its counting. The learned Counsel for the petitioner has contended that though proviso to sub-rule (6) of Rules 56 of the Rules prohibits the counting of a "tendered vote" by the Returning Officer, such votes can be counted by the court while ordering re-count and inspection. In support of his contention, the learned Counsel for the petitioner has placed reliance on the decision of the Election Tribunal, Patna, in Kalicharan Singh v. Ramcharitar Rai Yadava and others, 5 ELR 98, and that of the Election Tribunal Coimbatore, in A.K. Subbaraya Gounderv. KG. Palanisami Gounder and others, 11 ELR 251, which were approved by the Hon’ble Supreme Court in Dr. Wilfred D Souza v. Francis Manino Jesus Ferrao, 1976 UJ (SC) 999. 31. The Hon’ble Supreme Court in Dr. Wilfred D Souzas case (supra), while holding that a tendered ballot paper can be taken into account during the proceedings of the election petition, has held that before such a tendered ballot paper can be taken into account during the proceedings of the election petition, evidence would have to be led on the following two points by the petitioner, that : (a) the person who cast the initial vote as voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number; and (b) it was such genuine voter who marked the tendered ballot paper. 32. 32. It was further held that insofar as the first point is concerned the evidence of genuine voter that he had not cast such initial vote would normally and in the absence of any circumstance to the contrary regarding its veracity be sufficient and once the above two points are proved, the following consequences would follow: (a) The Court would exclude the vote initially cast by the person other than the genuine voter from the number of votes of the candidate in whose favour it was cast; and (b) The court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked. 33. In the present case, though it has been shown that three tendered votes were cast, that is, one each at polling stations No. 10,76 and 78, there are neither pleadings nor any evidence has been led by the petitioner to show that the three persons who cast the initial votes as voters on particular serial numbers in the electoral roll were someone other than the genuine voters mentioned at that serial numbers. Nor there is any evidence to show that the genuine voters had marked the tendered votes. The petitioner himself while appearing as PW 2 has also not stated that the initial votes were not cast by genuine voters or that the persons who had marked the tendered votes were genuine voters named in the electoral roll. He has deposed only to the following effect : "There were three tendered votes, out of which only two have been depicted in Exbt. P-83. One tendered vote which has been shown in Exbt. P-76 has not been reflected in Exbt. 83. These tendered votes were not counted. Respondent No. 1 was declared elected by margin of three votes." 34. Since the two pre-requisites for counting of tendered votes, as laid down by the Honble Supreme Court, have not been proved and fulfilled, the three tendered votes in the present case cannot be ordered to be counted. 35. As regard the contention as to wrong counting of posted ballots, the petitioner has averred in para 12 of his petition, as under: "That the petitioner got majority of votes from ballot papers taken out from the ballot boxes of all the polling booths despite various irregularities committed during the counting in favour of respondent No. 1 and against the petitioner. The petitioner was said to have polled 11,657 votes while the respondent No. 1 was said to have polled 11,660 votes which were taken out from the ballot boxes. Total 160 postal ballot papers were counted. Out of them 30 were declared as invalid and 20 were said to have been polled in favour of the petitioner while other 94 ballot papers were said to have been polled in favour of the respondent No. 1. Approximately 15 to 20 declarations of the postal ballot papers were not duly signed/ attested by the competent authority 4 or 5 such postal ballot papers were not found in cover. Thus these ballot papers were liable to be rejected but the Returning Officer has counted the same in favour of the respondent No. 1. Besides about 20-30 postal ballot papers were received at the time when the counting was in progress, i.e. after 28.2.1998, thus these ballot papers could not have been counted and were liable to be rejected. But all these postal ballot papers which were received during the counting were counted in favour of respondent No. 1 and in violation of rules and the instructions issued by the Election Commission of India. Thus the election of the respondent No. 1 has been materially affected due to the counting of the postal ballot papers which were liable to be rejected. In view of above, apart from summoning and recounting these postal ballots, their inspection may also be granted to the petitioner." 36. Suffice to say that no evidence is forthcoming on behalf of the petitioner with regard to the averments made in para 12 of the petition [quoted above]. The petitioner, while appearing as PW 2 is absolutely silent on this aspect/The relevant record pertaining to postal ballot papers was also not summoned by the petitioner. PW 1 Shri Kamlesh Kumar Pant, the District Election Officer who was summoned with the record has categorically stated that he had not brought the record pertaining to postal ballots as the same was not summoned from him. 37. In the absence of evidence, it cannot be said that there has been wrong counting of postal ballots. Therefore, a case for recounting on this ground also has not been made out by the petitioner. 38. 37. In the absence of evidence, it cannot be said that there has been wrong counting of postal ballots. Therefore, a case for recounting on this ground also has not been made out by the petitioner. 38. Next comes the contention that the number of ballots shown to have been polled and counted were in excess of the ballot papers shown to have been issued to the voters at different polling stations. According to the petitioner, as per Forms 16-A, copies of which are Ex. P-l to P-82, a total number of 35,310 ballot papers were issued to the voters at the 82 polling stations set up in the constituency. The same number of ballots is recorded in the statement in Form 20-A, copy of which is Ex. P. 83. However, as per statements of round wise detailed result of counting, copies of which are Ex. P. 84 to P. 90, the total number of ballots counted has been shown as 35,318. Thus, 8 votes were counted in excess of the votes which were issued to the voters. The relevant averments in this behalf are contained in para 10 of the petition as under : "That the counting staff after opening the ballot boxes on the tables, took out and separated the ballot papers for the Assembly Constituency as well as for the Parliamentary Constituency. After separating the votes, the votes taken out from each ballot box were counted without determining the same candidate wise. Then the number of the ballots taken out were entered in Form 20-A under Rules 56-b(7) of the Conduct of Election Rules, 1961. As per the Form 20-A, certified copy of which is added herewith as Annexure P/2, the total number of ballot papers polled from all the polling stations of the Assembly Constituency were shown as 35,310, while the votes actually counted from all these polling stations were shown as 35,318, which is evident from the statement Round-wise detailed result of counting, a certified copy of which is added as Annexure P/ 3. Thus 8 votes more were counted than actually taken out from the ballot boxes for the Kutlehar Assembly Constituency. This cannot happen in any circumstances unless there is irregularity in the counting and this difference of votes clearly shows that the counting was not properly done and has materially affected the election of the respondent No. 1. Thus 8 votes more were counted than actually taken out from the ballot boxes for the Kutlehar Assembly Constituency. This cannot happen in any circumstances unless there is irregularity in the counting and this difference of votes clearly shows that the counting was not properly done and has materially affected the election of the respondent No. 1. These irregularities and illegalities were committed during the counting in favour of the respondent No. 1 by the members of the counting staff." 39. The petitioner while appearing as PW 2 has deposed: "The counting took place in six rounds and round wise result of counting was prepared. The round wise result of counting is reflected in Exbt. P. 84 to P. 89. The consolidated result of counting after six rounds was prepared, copy of which is Exbt. P. 90. The total number of votes counted as per Annexure P-90 was 35318. The counting of votes in respect of the Parliamentary Constituency finished about 2 hours before the counting in respect of Assembly Constituency had concluded. The staff deployed for the purpose of counting of the votes of the Parliamentary Constituency had also crossed over to the tables set up for counting of votes of Assembly Constituency. By that time, it was already about 5 p.m. The offices had closed and number of persons from such offices had also entered the counting hall. I had objected to the entry of such persons to the counting hall but my protest was not acceded to by the returning officer and it appears that some bungling might have taken place during such melee, resulting into the difference in total number of votes by 8. The result of the Constituency election was the last to be declared in the State. The bungling appears to have taken place in order to favour the returned candidate, i.e. respondent No. 1. The difference in the number of total votes by 8 has materially affected the result of the election." 40. Be it stated that the case set up by the petitioner in his evidence as PW 2 is absolute contrary to the one set up in para 10 of his petition as quoted above. It is well settled that any evidence which is contrary to the pleadings cannot be looked into. Be it stated that the case set up by the petitioner in his evidence as PW 2 is absolute contrary to the one set up in para 10 of his petition as quoted above. It is well settled that any evidence which is contrary to the pleadings cannot be looked into. Moreover, there is nothing on the record to suggest, assuming that there has been some bungling, as to who had mixed such excess eight votes in the votes taken out from the ballot boxes and during the course of which round of counting or that such excess eight votes were cast in favour of respondent No. 1. 41. Admittedly, no objection was raised by the petitioner regarding these excess eight votes during the course of counting though he was present throughout during the counting of votes. Nor any such objection was raised by any of his counting agents. The petitioner as PW 2 during the course of his cross-examination has deposed:— "The counting started at about 5 a.m. I remained present in the counting hall throughout. The work of mixing of the ballot papers was over at about 10.30 a.m. or 11.00 a.m. I do not remember when counting of the first round started. I do not remember when counting of the first round ended. I do not remember when the counting in respect of 2nd, 3rd, 4th and 5th started and ended. The counting of the 6th round started approximately at about 5 p.m. and had ended by about 7.30 p.m. During the course of counting, neither the Deputy Commissioner, Una, nor any observer of the Election Commission of India had come. Video cassette was prepared during the course of counting. I do not know who had taken the video film. No objection was raised by me with the returning officer during the course of any of the counting. It is correct that the fact regarding the differences of votes was not mentioned by me in my application for recounting, copy of which is Exbt. P-91. Volunteered, the fact was not mentioned by me since by that time, I had not come to know about the same. I had come to know about the difference of votes only after I had obtained the certified copy of various statements.....The certified copies of the various statements were made available to me about 15-20 days after the declaration of the result. I had come to know about the difference of votes only after I had obtained the certified copy of various statements.....The certified copies of the various statements were made available to me about 15-20 days after the declaration of the result. I had come to know about difference of eight votes only after I was supplied copies of the statements. It is correct that the difference of eight votes is based on the total as reflected in Ex. P-83 and Ex. P-90." 42. The petitioner has further admitted/stated in his cross-examination to the following effect:— "No complaint was made by me against any member of the election staff either before or after the declaration of the result. No complaint was made by me against any member of counting staff present at the time of counting. It is correct that one of the figures, out of the two figures, namely 35,310; 35,318 is correct. Volunteered, according to me, the figure 35,310 is correct. A bundle of 1000 votes was ordinarily coming to each table at the time of counting. It is correct that the votes polled by each candidate was being separated and thereafter total votes polled by each candidate were being separately entered in the statement and handed over to the returning officer. It is correct that all the votes polled were counted on six tables in six rounds in the presence of my counting agent. During the course of counting, no objection was ever made by my any of the counting agent with regard to the number of votes found in each bundle either less or more. It is wrong to suggest that total number of votes polled and found in counting was 35,318 and that a mistake was committed in mentioning the total as 35,310 in Ex. P-83. It is wrong to suggest that since the margin of votes by which respondent No. 1 was declared elected was too small, I had filed the election petition and that otherwise I have no ground thereafter. It is wrong to suggest that counting had taken place properly and no irregularity or illegality was committed." 43. P-83. It is wrong to suggest that since the margin of votes by which respondent No. 1 was declared elected was too small, I had filed the election petition and that otherwise I have no ground thereafter. It is wrong to suggest that counting had taken place properly and no irregularity or illegality was committed." 43. The case put forth by the respondent No. 1 with regard to the total number of votes polled and counted as contained in para 10-A of the amended written statement is as under :— "That the votes actually counted from all those polling stations were shown as 35318, which is a correct and genuine figure. This figure was never challenged by the petitioner in his application dated 3.3.1998 submitted before the Returning Officer, on the grounds which he is trying to challenge and allege at this stage. In fact, any figure other than 35318 may be due to some clerical error, which cannot be questioned at this belated stage. The petitioner was personally present during the counting and he himself noted that the total number of votes polled were 35318. He is presumed to have admitted this figure as correct because in his written objections dated 3.3.1998 submitted before the Returning Officer, he never alleged that the figure of the votes polled, that is, 35318 is wrong or it differs. It is settled principle of law that in the Election Petition the petitioner cannot be allowed to develop his case on the grounds which he failed to take at the initial stage......" The respondent No. 1 while appearing as RW 1 has deposed to the following facts:— (i) No objection or complaint was made by any of the candidates during the course of the counting; (ii) No objection was raised either by the petitioner or his counting agents during the course of counting; (iii) Record was being maintained with regard to each round of counting candidate-wise; (iv) Such record was correctly prepared by the counting staff and the votes polled by each candidate were entered as were found during the course of the counting; and (v) There was no dispute with regard to the correctness of the record prepared. 44. Respondent No. 1 has not been cross-examined by the petitioner on the following aspects, that is :— (a) Difference of eight votes as is depicted from the combined reading of Ex. 44. Respondent No. 1 has not been cross-examined by the petitioner on the following aspects, that is :— (a) Difference of eight votes as is depicted from the combined reading of Ex. P-83 and Ex.P-90; (b) Which of the two figures out of 35,310 and 35,318 is correct; (c) That the eight excess votes were mixed either by the counting staff or the counting agent(s) of the respondent No. 1; and (d) that the record of counting was not correctly prepared. 45. It is the admitted case of the petitioner that he had made an application (Ex. P-91) before the Returning Officer for recounting of votes. The only ground set up by the petitioner in such application for recounting of votes is :— "The margin of votes is very less and I am having doubt in the counting of votes on the part of the counting staff and am not satisfied with the procedure/process of counting......" 46. The application Ex. P-91 was rejected by the Returning Officer vide his order Ex. P-92. While praying for recount of votes, the grounds set up in the present petition were not raised in the application made to the Returning Officer. 47. In Satyanarain DudhanVs case (supra), the election petitioner after the completion of the counting, by making an application to the Returning Officer, had prayed for the recounting of votes. In. such application it was averred as under:— "Inspite of objection raised by our representatives, votes in our favour were either rejected or they were counted in favour of the opposite party. Therefore, it is requested that the votes may be recounted." 48. The request was rejected by the Returning Officer. In the election petition, the High Court of Patna allowed the recount. On appeal, the Honble Supreme Court, while holding that the High Court was not justified in ordering recount and allowing inspection of the ballot papers, observed:— "It is thus obvious that neither during the counting nor on the completion of the counting there was any valid ground available for the recount of the ballot papers. A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the returning officer. A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the returning officer. We are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting. Ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered. As stated above only three line objection application was filed before the Returning Officer. No objection whatsoever was raised during the counting and no irregularity or illegality was brought to the notice of the Returning Officer. Even the material in the election petition has been pleaded with the object of having a fishing enquiry and does not inspire confidence." 49. In Beliram Bhalaik v. Jai Behari Lal Khachi and another, AIR 1975 SC 283, all that was stated in the application made to the Returning Officer was that the election petitioner was not satisfied with the counting and, therefore, wanted a recount. The application did not contain any ground on which a recount was sought and as such, did not comply with the mandatory requirement of Rule 63(2) of the Rules, which provides that after the announcement of the result of counting, a candidate or in his absence his election agent or any of his counting agents 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. It was held: ".....A whimsical and bald statement of the candidate that he is not satisfied with the counting, is not tantamount to a statement of the grounds within the contemplation of Rule 63(2). The application was thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to any irregularities in the counting. It was liable to be rejected summarily under sub-rule (3) of Rule 63, also......." 50. In Mahant Ram Prakash Dass v. Ramesh Chandra and others, JT 1999 (8) SC 421, the margin of victory of the returned candidate was 53 votes. The application made to the Returning Officer for recounting of votes was rejected. The High Court also refused recount. On further appeal before the Hon’ble Supreme Court, while maintaining the order of the High Court, observed : “A candidate or his agent has an opportunity to ask for recount at two stages: the first, before election result is finally declared, and the second, by way of election petition before the High Court. An application under Rule 63(2) of the Conduct of Elections Rules is to be given immediately after the votes secured by each of the candidates is announced under Rule 63(1), but such an application cannot be given after the candidate is declared elected under Rule 64. If an application is made under Rule 63(2) the Returning Officer shall decide the matter either by allowing the application in whole or in part or may reject in its entirety, if it appears to him to be frivolous or unreasonable. The decision shall be in writing containing reasons therefore. The application for recount should contain valid precise grounds on which the recount is asked for. When the Rules provide for enough opportunity to a candidate or his agent to watch the counting process before the result is declared and if an objection is raised as to the validity of any ballot paper and if such objection is rejected improperly, it would afford a basis for recount in an election petition. When the Rules provide for enough opportunity to a candidate or his agent to watch the counting process before the result is declared and if an objection is raised as to the validity of any ballot paper and if such objection is rejected improperly, it would afford a basis for recount in an election petition. The secrecy of the vote has to be maintained and demand for recount should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to error in counting of such magnitude that the result of the election of the returned candidate may be affected. Smallness of victory margin by itself may not be a sufficient ground for recount. However, if prima facie case is made out as to error in counting, small margin by which the returned candidate succeeded in the election assumes significance, inviting recount” (Emphasis supplied) 51. The High Court of Orissa in Smt. Nakka Bhikhyamana v. Sri Aurovindo Dhali and others, AIR 1993 Orissa 223, has held that a recounting cannot be ordered merely because the margin of difference is low. For making out a case for recounting of votes, the election petitioner has to establish the allegations of illegality and irregularity pleaded in the election petition. 52. The case of the petition is primarily based on the discrepancy between the total number of ballot papers issued and the ballot papers taken out from the ballot boxes and counted. Ex.P 1 to P 82 are the statements in Form 16-A required to be prepared by the Presiding Officer under Rule 45 of the Rules. According to these statements, a total of 35,310 ballot papers are shown to have been issued to the voters. Ex. P.90 is the statement in Form 20 which is required to be prepared by the Returning Officer under Rule 56 of the Rules. As per statement Ex. P. 90, a total of 35,318 votes were counted. 53. Dealing with the question of discrepancy between the total number of ballot papers issued and taken out from the ballot boxes and counted, the Hon’ble Supreme Court in D.P. Sharma v. Commissioner and Returning Officer, AIR 1984 SC 654, has held that discrepancies alleged in the statements prepared under Rules 45 and 56 of the Rules do not make out a case for directing a recount of votes. In para 4 of the said judgment, it was further held that in order to obtain recount of votes, a proper foundation is required to be laid by the election petitioner indicating the precise material on the basis of which it could be urged by him with some substance that there has been either improper reception of invalid votes in favour of the elected candidate or improper rejection of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidate which had in reality been cast in favour of the defeated candidate. 54. The above ratio has been quoted with approval by the Hon’ble Supreme Court recently in Vadivelus case (supra). 55. On the facts as set out above, it is held that the averments made in the petition and the material brought on the record by the petitioner do not make out a case to show that irregularities were committed during the counting of votes and that no case for recount has been made out. The petitioner appears to have indulged into a roving enquiry in an attempt to fish out material in the hope that the recount if allowed may probably twist the balance of votes in his favour. The election of respondent No. 1 has not been materially affected and the same is not liable to be set aside. Both the issues are decided against the petitioner. Issue No. 3. 56. In view of the findings recorded under issues No. 1 and 2 above, the petitioner cannot be declared as elected from 33 Kutlehar Assembly Constituency. The issue is decided against the petitioner. Issue No. 4. 57. Both the issues are decided against the petitioner. Issue No. 3. 56. In view of the findings recorded under issues No. 1 and 2 above, the petitioner cannot be declared as elected from 33 Kutlehar Assembly Constituency. The issue is decided against the petitioner. Issue No. 4. 57. Section 97 of the Act, which deals with recrimination, provides: "Recrimination when seat claimed.— (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election: Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in Sections 117 and 118 respectively. (2) Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner." 58. According to the above provision, a notice of recrimination has to be given within fourteen days from the date of "commencement of the trial". 59. Explanation to sub-section (4) of Section 84 of the Act defines "commencement of the trial" and it is provided that for the purpose of Section 97 of the Act, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim(s) made in the election petition. 60. Respondent No. 1 consequent upon service of notice of the election petition, had put in appearance before this court on 20.4.1998. The recrimination petition was, therefore, required to be filed by 4.5.1998. The same was infect filed on 15.5.1998, that is, much after the expiry of the prescribed period. Therefore, the recrimination petition being E.M.P. No. 9 of 1998, on the face of it, is not within time. The issue is decided against the respondent No. 1. Issue No. 6. 61. The recrimination petition was, therefore, required to be filed by 4.5.1998. The same was infect filed on 15.5.1998, that is, much after the expiry of the prescribed period. Therefore, the recrimination petition being E.M.P. No. 9 of 1998, on the face of it, is not within time. The issue is decided against the respondent No. 1. Issue No. 6. 61. Respondent No. 1 has made an application, E.M.P. No. 10 of 2000 for the condonation of the delay of 14 days in making the recrimination petition. The application has been resisted by the petitioner on the ground that the same is not maintainable since the provisions of Section 5 of the Limitation Act, 1963 are not applicable to a recrimination notice under Section 97 of the Act. 62. The question as to whether Section 5 of the Limitation Act, 1963, is applicable to a recrimination notice under Section 97 of the Act, or not, is no more res integra. The question stands decided by the Honble Supreme Court in Anwari Basavraj Patil and others v. Siddarmaiah and others, AIR 1994 SC 512, and it has been held that the provisions contained in Section 5, Limitation Act, 1963, are not applicable either to an election petition or to the recrimination notice under Section 97 of the Act. 63. In view of the settled law, it is held that the application, E.M.P. No. 10 of 2000, made by respondent No. 1, under Section 5, Limitation Act, 1963 for condonation of the delay in giving recrimination notice under Section 97 of the Act is not maintainable. The issue is decided accordingly against the respondent No. 1. Issue No. 5. 64. In view of the findings recorded under issue No. 6 above, the delay in giving the recrimination notice cannot be condoned. The issue is decided against the respondent No. 1. Relief. 65. As a result of the findings recorded under issues No. 1 to 3 above, the election petition fails and the same is accordingly dismissed with costs quantified at Rs. 10,000. Similarly, in view of the findings recorded under issues No. 4 to 6 above, the recrimination petition, E.M.P. No. 9 of 1998 and the application E.P.M. No. 10 of 2000, for condonation of delay are dismissed with costs quantified at Rs. 2,000. 66. 10,000. Similarly, in view of the findings recorded under issues No. 4 to 6 above, the recrimination petition, E.M.P. No. 9 of 1998 and the application E.P.M. No. 10 of 2000, for condonation of delay are dismissed with costs quantified at Rs. 2,000. 66. The Registry shall communicate the decision of the present petition to the Election Commission of India and the Speaker of the Himachal Pradesh Vidhan Sabha by sending an authenticated copy of the judgment in accordance with the provisions contained in Section 103 of the Act. Election petition dismissed.