JUDGMENT J.S. Narang, J. - The bye-election to the Punjab Vidhan Sabha held on 25.11.1998 from 28 Adampur Constituency has been challenged by Shri Dalvir Singh Dhirowal, the petitioner, who is an Elector of the aforesaid Assembly Constituency and his name has been entered at Serial No. 236 Part 55 of the said constituency. 2. The petitioner contested the aforesaid election but lost the same and as a defeated candidate has questioned the election result vide which Shri Kanwaljit Singh respondent No. 1 has been declared successful. The Election Commission of India issued a notification dated 30.10.1998 for holding the aforesaid bye-election and that as per the said notification various dates for filing the nomination papers etc. had been notified, which read as under :- (i) Last date for filing of nomination papers : 6.11.1998. (ii) Date of scrutiny of nomination papers : 7.11.1998. (iii) Last date of withdrawal of nomination papers : 9.11.1998. (iv) Date of polling (if any) : 25.11.1998. (v) Date of counting of ballot papers : 28.11.1998. 3. The petitioner alongwith all the respondents and various other persons filed the nomination papers and that after scrutiny and withdrawal of nomination papers, the petitioner and all the seven respondents, i.e., the total candidates, were left in the election fray of the aforesaid constituency. 4. The petitioner contested the election on the ticket of Shiromani Akali Dal (hereinafter referred to as SAD). Shri Kanwaljit Singh respondent No. 1 contested on the ticket of Indian National Congress (hereinafter referred to as the INC). Smt. Vidhwant Kaur on the ticket of Bahujan Samaj Party (hereinafter referred to as BSP). Shri Anoop Singh Minhas contested on the ticket of Shiromani Akali Dal (Simranjit Singh Mann) and that all others respondents contested the aforesaid election as independent candidates. 5. It is averred that after the polling on scheduled date, the counting was held on 28.11.1998 and upon the conclusion of counting, the respondent No. 1 Shri Kanwaljit Singh was declared elected by a margin of six votes, i.e., the said respondent polled 35285 votes while the petitioner polled 35279 votes and that 651 votes were declared as invalid. The balance votes, out of 82937 total votes polled, were casted in favour of the rest of the candidates. The balance votes, out of 82937 total votes polled, were casted in favour of the rest of the candidates. However, it is averred that total number of ballot papers which were actually counted came to be 82930, on the basis of which the result was declared and this total was in exclusion of six ballot papers received through post. The allegation is that seven votes were less counted than the actual number of votes taken out of the ballot boxes. Thus, the allegations on the basis of which the result declared has been challenged are :- (i) Seven votes were less counted than the actual number of votes taken out from the ballot boxes which is evident from form No. 20 Part I and form No. 20 Part II. (ii) During round number six at table No. 1, 1000 ballot papers were sent for counting but six votes polled in favour of the petitioner were misplaced and that these votes were enough which resulted in defeat of the petitioner. Since these six votes polled in favour of the petitioner were not counted, as such, the election of respondent No. 1 Kanwaljit Singh has been materially affected in his favour. (iii) During the counting, number of votes polled in favour of each candidate were neither announced nor displayed after each round of counting, despite specific direction of the Chief Election Commissioner of India. (iv) A large number of votes polled in favour of the petitioner were mixed in the bundle of respondent No. 1 Shri Kanwaljit Singh, the successful candidate and a number of votes polled in favour of the petitioner were illegally rejected while votes polled in favour of respondent No. 1 which were required to be rejected were in fact counted in favour of the respondent No. 1. It is alleged that about 115 votes which were polled in favour of the petitioner were wrongly rejected and that the allegation is that about 35 votes were rejected on the ground that these votes were having identification marks where the thumb impression of the voters got smudged on account of handling of ballot papers by the illiterate voters. It is alleged that about 115 votes which were polled in favour of the petitioner were wrongly rejected and that the allegation is that about 35 votes were rejected on the ground that these votes were having identification marks where the thumb impression of the voters got smudged on account of handling of ballot papers by the illiterate voters. Another 40 votes polled in favour of the petitioner were wrongly rejected on the ground that the impression of the seals issued by the Election Commission were touching above the line between the column of the petitioner and the other candidates whereas the major portion of the seal was found in the column of the petitioner. Another 20 votes though casted in favour of the petitioner were illegally rejected on the ground that the same were having double impression of the seal one against column of the petitioner and the other against the column of the other candidates. This had occurred on account of holding of the votes on the wrong side by the electors, these votes could not have been rejected. Another 20 votes were illegally rejected though they were not covered under any of the grounds tenable for rejection of votes. (v) So far as the votes polled in favour of the respondent No. 1 are concerned, some of them were required to be rejected, the detail of which is as under :- There were 17 votes which were required to be rejected though casted in favour of respondent No. 1, were wrongly accepted in his favour. There were 3 votes, upon which the impression of the seal was on the reverse side of the ballot paper though against the name of respondent No. 1, despite objections the said votes were accepted by the returning officer, which in fact should have been rejected. (vi) The counting agents of the petitioner were not allowed to see the serial number therefore could not note down the serial number of the ballot papers which had been wrongly rejected though casted in favour of the petitioner and also of those which in fact were wrongly accepted in favour of respondent No. 1. (vii) The petitioner raised objection and asked for recounting and that the other candidates also gave the application for recounting as they were not satisfied with the counting. (vii) The petitioner raised objection and asked for recounting and that the other candidates also gave the application for recounting as they were not satisfied with the counting. (viii) The irregularities were committed, during the counting to the benefit of Shri Kanwaljit Singh, respondent No. 1, the returned candidate and that resultantly caused loss to the petitioner. 6. Notices issued to the respondents were duly served on the dates noted in the orders but despite service, those who have not put in appearance were proceeded against ex parte. However, the contesting respondent, i.e., respondent No. 1 filed written statement and replication thereto was also filed which was taken on record. 7. The plea of respondent No. 1 is that the election petition lacks material facts and does not disclose triable issues and that no basis for the allegations made have been disclosed. As such, petition deserves to be dismissed on this short ground. 8. It is further stated that the petition has not been properly verified and that the contents of para No. 10(B)(i), 10(C) and 10(E), have been verified both as per knowledge as well as information received. Thus, it has not been specifically stated as to which para is verified from knowledge and which para is verified on the basis of information received. The genuineness of the annexures filed with the petition have been seriously disputed. 9. The allegations made in the petition have been categorically denied and it is stated that the figures mentioned therein are concocted as no basis for arriving at such numerals has been disclosed. It is also averred that the petitioner had duly affixed his signatures certifying his satisfaction with the process of counting and the result of counting and that no objection whatsoever was raised in this regard. It is further the claim that the respondent No. 1 polled higher number of votes and, therefore, has been rightfully declared elected. The petition is misconceived and, therefore, deserves to be dismissed. 10. On the pleadings of the parties, following issues were framed :- (1) Whether the material facts have been stated in the election petition and what is the effect of non-mentioning of all the materials facts ? (2) Whether the election petition has been properly verified and what is the effect of improper verification ? 10. On the pleadings of the parties, following issues were framed :- (1) Whether the material facts have been stated in the election petition and what is the effect of non-mentioning of all the materials facts ? (2) Whether the election petition has been properly verified and what is the effect of improper verification ? (3) Whether there have been any irregularities committed during the course of counting of votes and what is the effect of those irregularities in counting of votes on the result of the election and whether recounting is to be ordered ? (4) Whether the rejection of nomination of candidature of Jeewan Singh son of Joga Singh is not valid and if so what is the effect on the result of the election ? (5) To what relief ? 11. The petitioner has examined 21 witnesses and placed reliance upon the documents exhibited during the course of evidence of the respective witnesses. Following is the detail of the witnesses examined and the documents exhibited by each of the witnesses. S. No. Name of the Witnesses Documents Produced Details of Documents 1. PW1-Shri Rahul Sharma, 2. PW2-Shri Raj Kumar 3. PW3-Shri Dalvir Singh Ex.PW3/1 Application of Dalvir Singh dated 28.11.1998 for recounting. PW3/2 Application of Kulwant Singh regarding wrong counting. PW3/3 Complaint by Kulwant Singh to Election Commission for illegal counting. Ex.PW3/4 Draft of Petition. Ex.PW3/5 Certified regarding counting of votes. Ex.PW3/6 -do- Ex.PW3/7 -do- Ex.PW3/8 -do- Ex.PW3/9 -do- Ex.PW3/10 Complaint of Kulwant Singh Election Agent to Election Commission of India. (Mark A) Form 20 Part I (Mark B) Application of Shri Girdhara Singh for recounting and order passed thereon by R.O. (Mark C) Application for recounting by Smt. Vidhwant Kaur. (Mark D) Application by Shri Waryam Singh for recounting. 4. PW4-Shri Narinder Singh 5. PW5-Shri Harjinder Singh 6. PW6-Shri Jaswal Singh 7. PW7-Shri Harvinder Singh 8. PW8-Shri Gurmukh Singh 9. PW9-Shri Budh Singh 10. PW10,-Shri Srawan Singh 11. PW11-Shri Mohinder Singh 12. PW12-Shri Baljit Singh 13. PW13-Shri Harnam Singh 14. PW14-Shri Paramjit Singh 15. PW15-Shri Mohinder Singh 16. PW16-Shri Parminder Singh 17. PW17-Shri Harvinder Singh 18. PW18-Shri Ranjit Singh 19. PW19-Shri Karnail Singh 20. PW5-Shri Harjinder Singh 6. PW6-Shri Jaswal Singh 7. PW7-Shri Harvinder Singh 8. PW8-Shri Gurmukh Singh 9. PW9-Shri Budh Singh 10. PW10,-Shri Srawan Singh 11. PW11-Shri Mohinder Singh 12. PW12-Shri Baljit Singh 13. PW13-Shri Harnam Singh 14. PW14-Shri Paramjit Singh 15. PW15-Shri Mohinder Singh 16. PW16-Shri Parminder Singh 17. PW17-Shri Harvinder Singh 18. PW18-Shri Ranjit Singh 19. PW19-Shri Karnail Singh 20. PW20-Shri Surjit Singh Ex.PW-20/1 Nomination paper of Anup Singh PW-20/1-A -do- PW-20/1-B -do- PW-20/2 Nomination paper of Jiwan Singh PW-20/2-A -do- PW-20/2-B -do- PW-20/3 Oath form of Shri Jiwan Singh PW-20/4 Nomination paper of Anup Singh PW-20/A -do- PW-20/5 Form 20, Part II-Final Result Sheet. PW-20/5A to PW-20/5F PW-20/6A to PW 20/6G Form 20 Part I 21. PW21-Shri Kulwant Singh Ex.PW21/1" Fax message complaint dated 28.11.1998. 12. It is the case of the petitioner that he took part in the bye-election held at 28 Adampur Constituency as a candidate of SAD (Badal Group) and that including him, there were eight candidates put up by various political parties and that four other candidates contested the election as independent candidates. The main contest was between the petitioner and Kanwaljit Singh, the elected candidate, who was nominee of Indian National Congress. Shri Kanwaljit Singh won the election by a margin of six (6) votes. However, it is recorded in examination-in-chief of PW-3 that he polled 35279 votes and votes polled in favour of Shri Kanwaljit Singh are 35285. As per the petitioner, there were 141 total number of booths in the constituency and that the poling took place on 25.11.1998. The counting of the votes took place on 28.11.1998 at Guru Nanak Gyasium Hall in Hans Raj Stadium, Jalandhar. The total number of ballot papers retrieved from the ballot boxes were counted as 82937 before the commencement of counting roundwise. All the votes polled were counted on 14 tables and in six rounds. The counting staff was sitting inside the place whereas the representatives of the candidates were sitting outside that place. 13. The counting process commenced at 8 A.M. on 28.11.1998. The votes pertaining to each booth were opened separately turnwise on the said 14 tables. In the first instance, bundles of 25 each votes were made and that the counting took place accordingly and the entries in respect thereof were made accordingly on the requisite forms. 13. The counting process commenced at 8 A.M. on 28.11.1998. The votes pertaining to each booth were opened separately turnwise on the said 14 tables. In the first instance, bundles of 25 each votes were made and that the counting took place accordingly and the entries in respect thereof were made accordingly on the requisite forms. The counting so made was also recorded in a format on each table and the same was taken on the table of the Returning Officer, who in turn scrutinised and tabulated the same. The composite entries were also made accordingly in the format provided in this regard. It is alleged that total votes which were retrieved from the ballot boxes and counted at that time were 82937. It is also admitted that the said forms were filled in by the Returning Officer in the presence of the petitioner. The forms were also got signed from the petitioner and other candidates/counting agents. It is further the case of the petitioner that he had affixed signatures upon the forms in every round except the last round as the counting was not carried out in accordance with law. 14. The procedure adopted was that in one round 40 bundles of the ballot papers containing 25 ballot papers each were brought on the table and were opened one by one, meaning thereby 1000 votes were scheduled to be counted in each round on each table. For the purpose of scrutiny by the Returning Officer, the ballot papers were separated candidatewise and then were made into 50 ballot papers each. The rejected votes were also placed before the Returning Officer. 15. One set of votes which are subject-matter of challenge are 115 in number. The counting was not done correctly because the votes which have been polled/casted in favour of the petitioner were incorrectly rejected and that when the objection was raised by the representative of the petitioner or by his son, the Returning Officer turned out the said person(s) from the premises where the counting was going on. Out of 115 votes, 35 votes were such which contained correct impression of the seal in the box in front of the name of the petitioner yet they have been rejected. The said votes have been rejected on hyper-technicalities such as the thumb marks appearing on the ballot papers. Out of 115 votes, 35 votes were such which contained correct impression of the seal in the box in front of the name of the petitioner yet they have been rejected. The said votes have been rejected on hyper-technicalities such as the thumb marks appearing on the ballot papers. The said thumb marks in fact appeared on account of handling of ballot papers. Yet another 40 votes where the impression of the seal appeared on the line dividing the two symbols, one belonging to the petitioner and the other to the other candidates, the said votes have been rejected on the superficial objection. Another 20 votes were such where the impression of the seal was made in the box in front of the name of the petitioner but at the time of folding the ballot papers, the mark of the same got implanted on the other side being wet at that time and that the said votes were also wrongly rejected. There were another 20 votes which were rejected without any reason recorded or stated by the Returning Officer. 16. Similarly, such objections were raised while counting the votes of the elected candidates but such votes casted in favour of respondent No. 1 were counted to his credit. Thus, preferential treatment was meted out by the Returning Officer. It is the case of the petitioner that such votes are 17 in number which should have been rejected outrightly but unfortunately have been counted in favour of the elected candidate by showing him preferential treatment. There were eight more ballot papers which were literally torn but still they were counted in favour of the elected candidate by permitting them after being joined with cello tape. Similarly, there were six votes where the impression of the seal appeared on the line beyond the box of the elected candidate, yet they were counted in favour of the elected candidate. Three more votes which did not bear any impression of the seal or mark in the box either in front of the name of the elected candidate or the name of the petitioner or any other candidate, yet they have been counted in favour of the elected candidate. But these votes carry unidentifiable thumb impressions. Likewise, seven votes wherein the impression of the seal was in the box against the name of the petitioner, yet have been counted in favour of the elected candidate. But these votes carry unidentifiable thumb impressions. Likewise, seven votes wherein the impression of the seal was in the box against the name of the petitioner, yet have been counted in favour of the elected candidate. 17. It is averred that counting on the tables was not done in accordance with the norms and the procedure laid down, i.e., when the counting on one table was not complete, the counting on the other table of the second round was commenced which caused confusion vis-a-vis the representatives of the petitioner and resultantly they could not keep a close watch on the counting. After completion of counting of each round, the result was not disclosed or declared nor any forms were provided for filling in the result of the round. The petitioner was perhaps doubtful about the same and stated again that those forms may have been filled but the results were not declared. The Returning Officer did not carry out any sample inspection on the tables where the counting was going on. 18. It is alleged that in the sixth round on the first table, the votes were counted in favour of the petitioner out of the pile of 1000 votes but while sending the ballot papers, six votes were kept back and therefore, 994 ballot papers were sent after counting 994 instead of 1000. Thus, the total votes which have been counted came to be 82930 when the result was declared. The Returning Officer had also received six votes by post which had been opened in the presence of the petitioner and others. Out of the said six votes, one stood polled in favour of the petitioner and two in favour of the elected candidate and the rest stood polled in favour of the other candidates. A total number of 651 votes have been rejected in the first instance and upon second scrutiny and tabulation, the casted votes were held to be polled correctly in favour of the petitioner and also in favour of the elected candidate. 19. It is averred that he had filed an application, for raising the objection which is Ext.PW3/1 and similarly, his son Kulwant Singh had also filed an application which is Ext.PW3/2. The first application was rejected by the Returning Officer and that the second application was not entertained. 19. It is averred that he had filed an application, for raising the objection which is Ext.PW3/1 and similarly, his son Kulwant Singh had also filed an application which is Ext.PW3/2. The first application was rejected by the Returning Officer and that the second application was not entertained. A message was also sent to the Chief Election Commissioner of India, New Delhi on 4.12.1998 by the son of the petitioner Kulwant Singh, which has been exhibited as Ex.PW3/3 (objected to by the counsel of the returned candidate). It is averred that the Returning Officer had told the petitioner that the total polled votes were 82937. 20. The petitioner has stated that the present petition was drafted by the counsel of the petitioner but the facts recorded corrnologically (chronologically ?) in Punjabi language by the petitioner were handed over to the counsel. The draft has been exhibited as Ex.PW3/4 while answering the question in cross-examination. It is also admitted by the petitioner that the present petition was duly read over and explained to him and it is thereafter that he had affixed his signatures. It has been categorically denied by the petitioner that the petition had been drafted earlier and the draft prepared by him in Punjabi language thereafter. It has also been admitted that the draft was prepared on the advice of his counting agent. It has been admitted that counting agents of each candidate were present on each table and as such there were approximately eight persons in number who were present on each table. It is also admitted that some of the election agents of the candidates and that also some of the candidates were sitting on the chairs around the table of the Returning Officer. It is also correct that some of the election agents were going to and fro around the tables where the counting was going on so as to check to whether any bungling was being committed on any table. However, this fact has been further clarified by the petitioner that he knew about himself but not about the other candidates. But at the same time very fairly admitted that he was going around in the hall on the tables himself. However, this fact has been further clarified by the petitioner that he knew about himself but not about the other candidates. But at the same time very fairly admitted that he was going around in the hall on the tables himself. It is stated that in the sixth round on the first table, six votes have been bungled which were noticed by him but so far as other tables are concerned, he was not aware as to whether such kind of deficiencies/bungling took place or not. The objections were raised but the Returning Officer did not allow the representative/election agents to raise such objections. The objections were raised almost in every round. It has been admitted that the objection was filed by the petitioner which were not in his own hand writing but that of one Shri Gurmel Singh Dhillon, Advocate who was an election agent of Girdhara Singh. The petitioner denied for want of knowledge as to whether any other candidate or an authorised agent of any other candidate had filed any objection before the Returning Officer and especially relating to counting of the votes. 21. However, the petitioner admitted his signatures upon the forms which have been exhibited as Ext.PW3/5 to PW3/9. However, signatures of other candidates or their election agents have been denied by the petitioner. It is also stated that he had not affixed signatures upon the form relating to the sixth round because prior thereto he was winning and also in the sixth round. After the counting of the sixth round he was shown as a losing candidate. 22. The petitioner denied that he had seen any observer being present in the said hall who may have been appointed by the Chief Election Commissioner of India nor any other Senior Officer of any other department belonging to the State of Punjab was seen by him. It has been admitted by the petitioner that the fact of bungling in counting of the votes has not been mentioned in the complaint which had been filed by his Election Agent, which has been duly signed by him. It has also been admitted that he was not made aware of the contents of the said complaints but the facts stated therein are reiterated as the same were written upon his instructions. It has also been admitted that he was not made aware of the contents of the said complaints but the facts stated therein are reiterated as the same were written upon his instructions. The petitioner is not sure as to whether the recount of the votes has been asked for in these complaints or not. He is also unable to say as to whether all these complaints have been written by Shri G.S. Dhillon, Advocate or some of them had been written by some body else. 23. It is also stated that complaint Ex.PW3/2 was written by his son but the same was not entertained by the Returning Officer. The said complaint was also sent through fax to the Chief Election Commissioner of India, New Delhi but the petitioner was unable to produce any document in support thereof but has further stated that the said complaint was delivered personally as well as in the office of the Election Commission of India. The complaint sent through fax has been exhibited as Ex.PE3/10. It has been fairly admitted that the said complaint was faxed and delivered personally after the declaration of the election result and that the same was also drafted after the declaration of the result. It has also been admitted that the petitioner was the candidate of SAD (B) and that the said party was in power at that time. The petitioner stated that oral complaints to the office-bearers of the party were also made but he does not remember days/dates when the same were made. 24. It has been admitted that Shri Balwinder Singh Bhundar is/was the General Secretary of SAD(B) and that he was appointed as the Election Agent of Girdhara Singh, an independent candidate. The petitioner volunteered that Shri B.S. Bhundar, General Secretary was not supporting him in the election as he had difference of opinion vis-a-vis his candidature. The petitioner has not been able to establish any complaint having been made by him to the President of Akali Dal against the behaviour of the aforesaid General Secretary. It has been admitted that the fate of the rejected and doubtful votes was decided by the Returning Officer on her table in the presence of the candidates or the election agent or the counting agents as the case may be. It has been admitted that no objection in this regard in writing to the Returning Officer was submitted. It has been admitted that the fate of the rejected and doubtful votes was decided by the Returning Officer on her table in the presence of the candidates or the election agent or the counting agents as the case may be. It has been admitted that no objection in this regard in writing to the Returning Officer was submitted. However, oral objection is stated to have been made but the same remains uncorroborated. It has also been admitted that this point/objection is not contained in the draft of the petitioner which is Ex.PW3/4. 25. Shri Narinder Singh, PW4, the counting agent of Girdhara Singh, an independent candidate, has disclosed that the total votes as counted initially were 82937 and that he was assigned his duty at table No. 1 and has stated that an objection had been raised by other election agent or the counting agent or candidates in respect of three votes in the first round but he did not raise any objection. He has averred that in the sixth round, it was found that the vote counted were only 994 and not 1000. As per him, neither the Returning Officer nor any other officer came to table No. 1 for checking as to whether the counting was going on correctly or not. However, he admitted that Gurmel Singh Dhillon, Advocate was the election agent of Girdhara Singh and that he was present in the hall throughout, i.e., on the commencement of the counting till its completion. It has been admitted by him that he did not make any complaint in writing but made only oral complaints to the official incharge of counting, which fact again remains uncorroborated. It has also been admitted that the signatures of the election agents were obtained upon the requisite form upon completion of every round of counting. However, it has been stated that the signatures were obtained in advance upon the said forms. It has also been admitted that the counting process was being video taped but he does not know/cannot tell at whose instance the video filming was done. It has also been admitted that the video recording was done intermittently and was not carried out minute by minute. The visit of any senior Officer from any quarter has been denied. It has also been admitted that the counting process was being video taped but he does not know/cannot tell at whose instance the video filming was done. It has also been admitted that the video recording was done intermittently and was not carried out minute by minute. The visit of any senior Officer from any quarter has been denied. It has been admitted that the election agent and also the candidates were going around the tables where the counting was going on. It is also averred that he did make a complaint to Shri G.S. Dhillon, Advocate, election agent of Girdhara Singh to the effect that six votes had been counted less and further states that Gurmel Singh Dhillion informed him that he has filed an application asking for recount. It has been admitted by him that the fact of shortage of six votes had not been disclosed by him to any of the election officers as he had not put in any complaint in writing in this regard. 26. Another counting agent of Shri Girdhara Singh has been examined as petitioners witness, namely Harjinder Singh, PW5, who was assigned duty at table No. 9. He has also corroborated the fact that total number of ballot papers which were counted before commencement of roundwise counting for declaration of result were 82937. It is also averred by him that some irregularity was found but failed to point out as to what irregularity was found. It is averred by him that in the second round, only seven votes were termed as doubtful votes which were ultimately rejected and that in the third round also three votes were declared doubtful which were also rejected and that apart from this, there was no other irregularity declared, pertaining to doubtful votes. As per him, no sample inspection was carried out either by the Returning Officer or the Assistant Returning Officer. It is also admitted that no complaint had been made by him in writing to anyone. It is averred by him that counting agents of all the candidates were present on the table where he was assigned duty but he does not remember the names of any of the said counting agents. It has been denied that observers or the Deputy Commissioner of the area had come and had taken the round for the purpose of checking. It has been denied that observers or the Deputy Commissioner of the area had come and had taken the round for the purpose of checking. However, it has been admitted by him that he cannot recognise the Deputy Commissioner or the observers nor he can say as to whether observers from the Election Commission of India had visited the said place at that time. The video recording has been admitted by him. It is also admitted that the election agent/candidates used to be present at the time when the doubtful votes were rejected or accepted by the Returning Officer. It has also been admitted that results of the votes polled in favour of candidates were announced and were also written on the black board but this exercise was carried out only upto two rounds and thereafter, it was discontinued. He does not know as to whether any objection in this regard was raised relating to the 3rd, 4th, 5th and 6th round. 27. Similarly, counting agent of Shri Girdhara Singh namely, Shri Jaspal Singh, PW6 has deposed that he was assigned duty at table No. 7. He has corroborated that the total number of ballot papers was 82937. It is averred that in the 5th round, he had pointed out that two votes which were completely torn were joined with the cello tape and were counted in favour of the returned candidate. No sample inspection was carried out by the Returning Officer or the representative. It is averred that at the time of 3rd and 4th round, the situation had become volatile and was completely out of control of the Returning Officer. The result of the votes polled in favour of the candidates was declared only on the first round and thereafter the result was not declared nor it was written down on the black board. The said witness was unable to tell any irregularity which may have been committed on any other table. It has also been admitted that no complaint in writing was made in respect of any alleged irregularity. However, oral complaint is stated to have been made. It is also admitted that no complaint was made to any one in respect of the alleged commotion stated to have taken place after the third round. It has been admitted that it has been disclosed now in Court with regard to the commotion after the third round. However, oral complaint is stated to have been made. It is also admitted that no complaint was made to any one in respect of the alleged commotion stated to have taken place after the third round. It has been admitted that it has been disclosed now in Court with regard to the commotion after the third round. It has also been admitted that the counting agents(s), candidate(s)/representative(s) of the candidates were present on the table of the Returning Officer when the votes were rejected/accepted. It is further admitted that he does not recognise the Deputy Commissioner of the district nor he could identify any person(s) who may have come as observers appointed by the Election Commission, but again said that the present Deputy Commissioner can be recognised by him and it may be that the present Deputy Commissioner had come at the place of counting at that time but the witness is not sure. The factum of video recording has been admitted. The witness does not know/remember the name of the village to which his candidate Shri Girdhara Singh belongs to nor does he know the name of his father or the names of brothers of said candidate. The witnesses is unable to tell as to how many votes were polled in favour of Girdhara Singh on his table. However, the total votes polled in favour of Girdhara Singh have been disclosed as 94. 28. Another counting agent of Shri Girdhara Singh an independent candidate has been examined, namely. Arvinder Singh, PW7, who has also deposed almost similarly as others and has also corroborated the fact that the total number of ballot papers taken out from the ballot boxes was 82937 and that he was assigned duty on table No. 11. The fact of video recording has been admitted by the witness. It has also been admitted that the candidates and the election agents had made rounds around the tables where counting of the votes was going on. It has also been admitted that doubtful votes were accepted or rejected by the Returning Officer in presence of the candidates or the election agents. It has also been admitted that he did not make any complaint in writing to anyone. However, oral complaints had been made to the election agent of Shri Girdhara Singh. It has also been admitted that doubtful votes were accepted or rejected by the Returning Officer in presence of the candidates or the election agents. It has also been admitted that he did not make any complaint in writing to anyone. However, oral complaints had been made to the election agent of Shri Girdhara Singh. It is also admitted that the oral complaint was made to the election agent after 20 days from completion of counting. This witness was also unable to recognise Deputy Commissioner of the district and cannot say as to whether any observer was appointed by the Election Commission and that the said observer had ever visited the premises where counting was going on. He also does not know on what paper he was asked to affix his signatures. He does not know as to whether any kind of request/application was made for seeking recount of the votes casted. It has been denied that after every round, votes counted in favour of the candidates were announced and written down on the black board. However, it has been admitted that the officials did take rounds at the time of initial counting but did not make any other round thereafter. 29. Similarly, Shri Gurmukh Singh, PW8, counting agent of Shri Girdhara Singh has been examined as a witness, who had been assigned duty at table No. 10. He has deposed similarly and has corroborated the fact of total ballot papers as 82937. It is admitted by this witness as well that the complaint was made to the election agent of Shri Girdhara Singh after about 20 days from the counting and this fact was also disclosed to the petitioner almost at that time. The witness is unable to tell as to how many votes were found invalid or were rejected on the table where he was assigned duty nor he is able to tell as to in whose favour the votes were casted which bore incorrect impression of the seal but from the impression gathered from others he has stated that they were casted in favour of Kanwaljit Singh Lalli. The fact of video recording has been admitted. It has been corroborated that the result was declared and written down on the black board relating to the first and second round but this practice was not followed for the 3rd, 4th, 5th and 6th round. 30. The fact of video recording has been admitted. It has been corroborated that the result was declared and written down on the black board relating to the first and second round but this practice was not followed for the 3rd, 4th, 5th and 6th round. 30. Shri Budh Singh, election agent appeared as PW9 and has corroborated the general facts as averred by the other witnesses and has also corroborated the fact that the total votes polled were 82937 and that at the time of declaration of the result, the total count of ballot papers came to be 82930. The witness is son of the petitioner and has corroborated that he was not given any opportunity to put in any complaint in respect of the votes which had been rejected. However, it has been admitted that complaint was made after counting was completed and the result had also been declared. It has been admitted that petitioner was present at the table of Returning Officer at the time of rejection/acceptance of the votes. It has also been admitted that no written complaint was made in respect of the rejected votes. The witness is unable to say as to whether any election observers or anybody else from the election department was present where counting was going on. The video recording has been admitted. It has been averred that neither Returning Officer nor any other officer made periodic checks on the tables where counting was going on. 31. Similarly, shri Sarwan Singh, PW10 deposed as counting agent of the petitioner. He has corroborated the mathematical facts deposed by other witnesses and has admitted that 82937 ballot papers were counted. It has also been averred that no result of subsequent rounds was declared after declaration of result of the first round. It has been averred that counting agents of other candidates did raise objection in respect of rejection of the votes but the witness could not remember as to what kind of objections had been raised by them. The witness is unable to tell as to whether votes have been actually incorrectly rejected by the Returning Officer or not. The witness denied for want of knowledge as to whether any observer appointed by the Election Commission of India had visited the place where counting was going on. The witness is unable to tell as to whether votes have been actually incorrectly rejected by the Returning Officer or not. The witness denied for want of knowledge as to whether any observer appointed by the Election Commission of India had visited the place where counting was going on. This witness has also admitted that he had not made any complaint in writing but oral complaints were made. He has also further admitted that his candidate had not been informed of the objection, at the time and that the same was disclosed to the candidate after about 2 to 3 days of declaration of the result. 32. Somewhat similar depositions have been mathematically made by the witnesses i.e., PW11 to PW19, namely, Sarvshri Mohinder Singh, Baljit Singh, Harnam Singh, Paramjit Singh, Mohinder Singh, Parminder Singh, Harvinder Singh, Ranjit Singh and Karnail Singh as counting agents of the petitioner or those of Shri Girdhara Singh. 33. The officer Shri Surjit Singh, PW20 was also examined by the petitioner, who had assisted Returning Officer during assembly elections which were held in the Adampur Assembly constituency. He identified that the name of Returning Officer is Miss Sarojani Gautam Sharda and that he had earlier worked with her when she was holding charge of Special Land Acquisition Collector, Jalandhar, as such, is in a position to identify her signatures as he had seen her writing and signing, as a sequel thereto, some of the documents were exhibited in his statement, which bore signatures of Returning Officer. The said documents are Ext.PW20/1, the nomination papers Ext.PW20/1/1/ and Ex.PW20/1/B (signatures upon the said exhibits have been objected to by counsel for the elected candidate). Similarly, nomination paper Ext.PW20/2 has also been exhibited and thereupon the signatures of Returning Officer have been exhibited PW20/2/A and PW20/2/B (objected to by the counsel for the returned candidate). It is averred that Returning Officer administered oath to the returned candidate, oath is contained in the said form which has been exhibited as PW20/3 (objected to by the learned Counsel for the elected candidate). A nomination form filed by Shri Anoop Singh has also been exhibited as Ext.PW20/4 (objected to by learned Counsel for the respondent). The form No. 20, relating to the entries which were made, was duly signed by the Returning Officer, which has been exhibited as Ext.PW20/5 (running into 7 pages). A nomination form filed by Shri Anoop Singh has also been exhibited as Ext.PW20/4 (objected to by learned Counsel for the respondent). The form No. 20, relating to the entries which were made, was duly signed by the Returning Officer, which has been exhibited as Ext.PW20/5 (running into 7 pages). He has also corroborated that the total number of ballot papers retrieved from the ballot boxes were counted as 82937 and that six ballot boxes have been received by post which were kept in the custody of Returning Officer. He has further corroborated that Returning Officer used to receive the report from each table as to how many votes were casted in favour of each candidate. On the basis of data of consolidated information of each round every time was received by way of requisite forms having been filled in, the result was announced on the loud speaker and was written down on the black board lying behind the table of Returning Officer. The said forms have been exhibited as Ext.PW20/6/A containing 8 pages. He has stated that signatures of the candidates were not obtained upon the proforma notifying that the counting was going on correctly but signatures of the counting agents were obtained. However, he has denied that preform Ext.PW3/5 is the same proforma which was got signed by him from the counting agent of the candidates. He has further corroborated that he used to obtain signatures after every round of counting and that none of the counting agents raised any kind of objection in respect of counting which was going on. He has also confirmed that observers appointed by Election Commission of India visited the premises where counting was going on. However, he could not tell as to whether they took rounds of the tables where counting was going on. However, corroborated the fact that the election agents of the candidates were taking rounds of the tables where counting was going on. It is also correct that the votes were rejected by a decision having been taken by Returning Officer on her table but was unable to say vis-a-vis the presence of the candidates and also the counting agents on the table of Returning Officer as he could not be present on the table as he had been assigned duty in the hall and not on the table of Returning Officer. He has corroborated the fact of nomination papers having been filed in his presence and the same having been signed by Returning Officer in his presence. However, he failed to identify the thumb marks of the proposers borne on the nomination papers. It is also stated that names of the proposers were tallied with the voters list and that the said voter list was in possession of the officer concerned. The name of the officer who tallied the same has been given as Bhupinder Singh Kanungo and that he has been posted at Jalandhar. 34. Shri Kulwant Singh son of the petitioner, who had been appointed as petitioners election agent was examined as PW-21. He deposed and corroborated mathematical facts and has stated that Kanwaljit Singh Lali, the returned candidate polled 35285 votes whereas the petitioner polled 35279 as per the result declared on 28.11.1998 of the bye-election. The result has been questioned by way of the present petition. He has corroborated that the result was declared on the basis of counting of 82930 votes. He has further stated that a number of votes were rejected on the ground that the impression of the seal was on the sign of the scale and that thumb mark had also appeared. The thumb impressions had been given because those who were illiterate used to give their thumb impressions upon the ballot papers for obtaining the same from the concerned official and that it is the same thumb impression which got imprinted on the said vote after the same had been folded incorrectly. Further 40 votes were such where the impression of the seal was touching the dividing line between the names of the two candidates and that the same were rejected incorrectly. Further 20 votes were such where the impression of the seal was on the sign of the symbol but due to incorrect folding of ballot papers, the same got imprinted on the other side and as a result thereof were rejected but the said rejection is incorrect. Another 7 to 8 votes were such which have been joined with the help of cello tape and the same having been casted in favour of the returned candidate were therefore incorrectly counted in his favour. Another 7 to 8 votes were such which have been joined with the help of cello tape and the same having been casted in favour of the returned candidate were therefore incorrectly counted in his favour. Further there were three votes where the impression of the seal appeared on the reverse side of the ballot papers yet they were counted in favour of the returned candidate. Further 10 votes were such which contained two impressions of the seal - one on the symbol of scale and the other on the symbol of Open Hand, yet they were counted in favour of the respondent. It is averred that he had pointed out that some of the votes had fallen under the table of Returning Officer and that objection was raised by him but instead of entertaining the objection, he was thrown out of the counting hall. Similarly, objection was raised by Mohinder Singh and he was also thrown out of the counting hall. Both were thrown out after the first round. He was again allowed to come in but he does not know at which round the counting was going on and that perhaps it may be 4th round. In sixth round allegedly 1000 votes had been brought on the first table but in fact were counted as 994 votes. There was a confusion because on some tables, counting relating to 4th round was going on whereas on some other tables, counting relating to 5th round had been commenced. It is averred that Returning Officer did not make any surprise or randum check when counting was going on. He has also stated that after first round, the result was declared but thereafter the results of subsequent rounds were not declared. The serial numbers of votes objected to were not allowed to be noted which had been declared doubtful but had been casted in favour of the returned candidate. However, it has been admitted that no complaint in this regard was made in writing but only oral complaint was made to Returning Officer which was not entertained. It has been admitted that the petitioner did make a complaint in writing but it was made after counting was over as Returning Officer had said that whatever complaint is to be filed it should be filed after counting is over and the same should be handed over within one minute. It has been admitted that the petitioner did make a complaint in writing but it was made after counting was over as Returning Officer had said that whatever complaint is to be filed it should be filed after counting is over and the same should be handed over within one minute. It is also averred that he tried to file the complaint in writing which was in fact written by Shri Gurdev Singh but the same was not entertained by Returning Officer and it is that complaint which has been exhibited as Ext.PW3/2. He has corroborated fact of having sent the complaint through fax and also having delivered personally. In cross-examination, the witness has not been able to tell the time when he was allowed to come back into the hall and where after he remained inside up to declaration of result. It is also admitted that he did not make any complaint with regard to the fact that he had been turned out of the counting hall and this fact whether it has been mentioned in the petition or not, is also not to the knowledge of the said witness. It has been admitted that draft of the petition was prepared by the petitioner, i.e., father of the witness. However, it has been averred that the points which had been drafted and given by him to the counsel, the said fact had been stated (no such draft/points has/have been produced by the witness). It has been further averred that the points so noted by the witness were sent to the counsel for drafting the petition. It is admitted that Shri Parkash Singh Badal was Chief Minister of Punjab when the election had taken place and also when the counting took place. It is also admitted that the petitioner was the candidate of the party of Parkash Singh Badal and that he had also come to the constituency in the capacity of President of the Party. The witness admitted that he had read in the newspaper that Election Commission of India had appointed observers but he could not tell as to whether those observers did visit the said constituency during the election campaign or not. However, he did notice the said observers at the time of first round of counting. The witness admitted that he had read in the newspaper that Election Commission of India had appointed observers but he could not tell as to whether those observers did visit the said constituency during the election campaign or not. However, he did notice the said observers at the time of first round of counting. The witness identified signatures of the petitioner i.e., his father upon the documents which have been exhibited as Ext.PW3/2 to Ext.PW3/9. Learned counsel for the respondent wanted to put the contents of the documents to the witness, which were disallowed. The witness was unable to tell approximate number of counting agents sitting on the tables where counting was taking place. He also stated that he was not aware as to whether any complaint had been filed by any other counting agent or any other candidate. However, it has been admitted that no complaint was made so long as he remained inside the counting hall. He has also admitted that he came to know about the incorrect rejection of votes only after counting had been finally made as this fact was disclosed by some of their counting agents but the witness was unable to recall names of those persons. It has also been stated that some of them disclosed the above said fact in the hall and some of them disclosed after he had come back from the hall. But again could not recall names of those persons as well. The video recording of proceedings at the time of counting has been admitted which was made intermittently. 35. The petitioner closed his evidence on 28.9.2000 and that the evidence of respondent was commenced on 2.11.2000. In all respondent (the returned candidate) examined 16 witnesses and the documents were also got exhibited accordingly which are referred hereunder :- Sr. No. Name of the Witnesses Documents Produced Details of Documents 1. RW-1 Shri Kanwaljit Singh Ex.RW1/1 (Recrimination Petition No. 1 of 1999). RW-2 Shri Paramjit Singh RW-3 Shri Om Parkash RW-4-Shri Kishori Lal RW-5-Shri Vijay Singh RW-6-Shri Satwinder Singh RW-7-Shri Harbhajan Singh RW-8-Shri Bhupinder Singh RW-9-Shri Kuldip Singh RW-10-Shri Karnail Singh RW-11-Shri Tarlochan Singh RW-12-Shri Amandeep RW-13-Shri Raj Kumar Ext.3 Video Cassettes marked as A, B & C (Three Video Cassettes which were filmed on 28.11.1998 in the Hall where counting of ballot papers was going on). 14. RW-14-Shri Rajinder Kumar @ Raju 15. RW-15-Shri Lakhwinder Singh 16. 14. RW-14-Shri Rajinder Kumar @ Raju 15. RW-15-Shri Lakhwinder Singh 16. RW-16-Shri Birdevinder Singh 36. Shri Kanwaljit Singh Lalli respondent No. 1, the returned candidate, appeared as his own witness as RW1. It is averred that he was the candidate of Indian National Congress (Congress-I) in the bye-election held on 25.11.1998 in the 28 Adampur Assembly Constituency. Apart from his, various other candidates had filed nomination papers for contesting the said election. The campaigning continued for 10 days officially but unofficially by some of the candidates, it continued for 15 days. The campaigning for the petitioner was done by all the Ministers of Government of Punjab, who belong to SAD(B) including Chief Minister Parkash Singh Badal. The Chief Election Commissioner had appointed two observers during the course of campaign and the polling as well. He was present at the time of final counting of votes and that including him all other candidates were also present at that time. The candidates were sitting upon the table of Returning Officer and intermittently, they had been taking rounds of other tables where counting was going on. He did not notice any irregularity during the course of counting and that not even single person had filed any kind of complaint in respect of counting of votes which were allegedly disputed or were considered doubtful. The same were brought to the table of Returning Officer which were finally decided in presence of the candidates or their representatives. The final result was declared, after the said votes had been rejected or accepted accordingly, which was notified on the black board by the Returning Officer. In this regard, signatures of the candidates or their representatives were obtained accordingly upon requisite sheets or formats. The observers appointed by Chief Election Commissioner were present at the time of counting and they were also taking rounds of tables where counting was going on. 37. It is averred that Shri Bir Davinder Singh was his election agent. The witness volunteered that Surinder Singh son of Piara Singh is his wifes brother but he does not have cordial relations with him and that he contested election against him. Shri Sukhwinder Singh is brother of the witness i.e., the returned candidate, who was election agent of said Surinder Singh and again volunteered that both the brothers do not have cordial relations. Shri Sukhwinder Singh is brother of the witness i.e., the returned candidate, who was election agent of said Surinder Singh and again volunteered that both the brothers do not have cordial relations. The witness admitted filing of Recrimination Petition No. 1 of 1999 and has therefore been exhibited as Exh.RW1/1 which was objected to by the learned Counsel for the respondent but the said objection has been overruled. It has been averred by the witness that observers remained in the hall throughout during counting and they did not leave the premises for any gap of time. No complaint was filed by him to the effect that counting has not been done correctly and that in fact counting has been done correctly. It is stated that whenever bundles of ballot papers were opened and any shortage was found, i.e., less than 1000, the same was made up by retrieving the number of ballot papers equivalent to the shortage found. The loose ballot papers were retained near the table of Returning Officer where all the candidates/election agents were present and that no one had raised any kind of objection at that time when such number of ballot papers were retrieved from loose bundles for making up the deficiency. It is categorically denied that any votes belonging to the petitioner had been misplaced by any of the representatives of the returned candidate. It is admitted that complaint had been filed by the petitioner and others, namely, Smt. Vidhwant Kaur, Girdhara Singh and Waryam Singh. It has been categorically denied that complaints had been filed before declaration of result. In fact said complaints had been filed after one hour of declaration of result. However, it has been stated that complaints were probably filed at about 7 or 8 p.m. on the same date but the witness could not tell the exact time when the counting had been concluded and the result had been declared. It is stated that it was dark at that time. It is further admitted that fax message had been sent to Chief Election Commissioner for seeking permission to declare the result and that reply had been received at about 10 a.m. and result was declared thereafter. It has been admitted that complaints had been filed before sending the fax message to Chief Election Commissioner. It is further admitted that fax message had been sent to Chief Election Commissioner for seeking permission to declare the result and that reply had been received at about 10 a.m. and result was declared thereafter. It has been admitted that complaints had been filed before sending the fax message to Chief Election Commissioner. It has been categorically denied that votes of the petitioner had been rejected incorrectly by Returning Officer. Further it has also been denied that votes casted in his favour, which were required to be rejected, had been incorrectly accepted in his favour by Returning Officer/counting officer. It has also been categorically denied that rejected votes, which were casted in his favour, were got counted in his favour in connivance with staff of the Election Department. It has also been averred that total votes which had been taken out of the ballot boxes were duly counted in front of all. He categorically denied that in fact more votes had been casted in favour of the petitioner than himself and that due to incorrect counting and connivance of representatives of the election department, he has been declared elected. It has also been denied by him that any short counting had been done, in fact whatever votes were taken out of the ballot boxes were duly counted. The witness could not tell the exact number of votes which had been taken out of the ballot boxes nor he could tell the mathematics of the votes on the basis of which result has been declared. It is worthwhile mentioning here that no negative suggestion was put to the witness. 38. Shri Paramjit Singh, RW2 counting agent of Shri Surinder Singh, one of the candidates, was also examined as witness by the respondent. The mathematics and the procedure has been explained similarly as has been stated by the returned candidate. He also corroborated that two observers had been appointed by respondent. They had visited the hall and had taken rounds of tables where counting was going on and that they remained present throughout the counting. He further corroborated that apart from observers, Deputy Commissioner had also visited the premises and that video film had also been made at that time. He also stated that the recount had been claimed after declaration of result. He further corroborated that apart from observers, Deputy Commissioner had also visited the premises and that video film had also been made at that time. He also stated that the recount had been claimed after declaration of result. He also corroborated that Shri Surinder Singh brother of returned candidate are not on speaking terms with each other. This witness could not tell name of any of the persons who may have filed any kind of complaint raising any kind of objection nor he could tell that any such application inclusive of seeking recount has been given by any candidate on the table of Returning Officer. However, declaration of result has been corroborated as has been stated by other witnesses. 39. Similarly Shri Om Parkash, RW3, has been examined as a witness being counting agent of the returned candidate. He has almost corroborated all the facts which have been averred by the returned candidate. He has also corroborated that he had not raised any objection with regard to any shortage of any ballot paper nor he could remember the number of votes which had been notified in each round on the black board and at the same time nor he could decipher as to how many votes were polled by his candidate in each round. He has categorically denied that any complaint had been filed by the petitioner under his signatures before declaration of result. The suggestion that votes casted in favour of any of the candidates including the respondent were in fact counted in favour of the petitioner and vice versa has been emphatically denied. He also denied that any vote which was rejected was permitted to be counted in favour of any candidate including the returned candidate. It is further denied that such act could be said to have been committed in connivance with officials from the election department. 40. Another witness Shri Kashmiri Lal who was counting agent of Surinder Singh has been examined as RW4. He has also corroborated facts which have been averred by the returned candidate and so also by other witnesses and that nothing tenable has been elicited from this witness in cross-examination. 41. Similarly, Shri Vijay Singh RW5 who was appointed as counting agent of respondent No. 1 has stepped into witness box and has corroborated all the facts averred by returned candidate. 41. Similarly, Shri Vijay Singh RW5 who was appointed as counting agent of respondent No. 1 has stepped into witness box and has corroborated all the facts averred by returned candidate. He has categorically denied that any candidate had given an application for seeking recount. In cross-examination, averments made in examination-in-chief have not been controverted nor any tenable answer has been elicited. 42. Similarly, RW Satwinder Singh, RW7 Harbhajan Singh, RW8 Bhupinder Singh, RW9 Kuldip Singh, RW10 Karnail Singh, RW-11, Shri Tarlochan Singh, RW-12 Shri Amandeep Raj have deposed and have admitted that they were appointed as counting agents by the returned candidate and in their cross-examination have submitted emphatically the facts which have been averred by respondent No. 1, i.e., the returned candidate. In cross-examination, nothing tenable has been elicited or any controversy relating to the facts averred in examination-in- chief could be brought out. 43. Respondent No. 1 summoned cassettes wherein video film was recorded at the time of the counting of votes in the defined premises on 28.11.1998. The said cassettes were produced by an officer Shri Raj Kumar, examined as RW13 without oath and the said cassettes had been marked as A, B and C. This was objected to by learned Counsel for the petitioner. The objection is meaningless as the said cassettes were not exhibited but were only marked. Thereafter, C.M. No. 75-E of 2001 was filed by respondent No. 1 for seeking direction to the Returning Officer for filing an affidavit for the purpose of disclosing names of the persons who had carried out recording of the film at the time when counting took place, on the date fixed for the purpose, i.e., 28.11.1998 relating to the Assembly bye-election. The alternative prayer was acceded to by counsel for the petitioner, as a sequel thereto, a direction had been issued to Returning Officer vide order dated 22.1.2001 and in pursuant thereto, Returning Officer Ms. Sarojani Gautam filed an affidavit dated 1.2.2001 disclosing the names and the firm concerned who had been detained for making video film as aforesaid. 44. Shri Rajinder Kumar alias Raju son of Shri Pritam Pal Singh Bhatia and Shri Lakhwinder Singh son of Kesar Singh were summoned as witnesses and who deposed as RW14 and 15 respectively. 45. Sarojani Gautam filed an affidavit dated 1.2.2001 disclosing the names and the firm concerned who had been detained for making video film as aforesaid. 44. Shri Rajinder Kumar alias Raju son of Shri Pritam Pal Singh Bhatia and Shri Lakhwinder Singh son of Kesar Singh were summoned as witnesses and who deposed as RW14 and 15 respectively. 45. Shri Rajinder Singh alias Raju RW14 deposed that 3 video cassettes were made at the time when counting took place and that after completion of video film, the said cassettes were handed over to Returning Officer. However, to court question - did he affix signatures upon Video Cassettes handed over to the Returning Officer and did he obtain any receipt in this regard - the reply submitted is that he did not affix signatures upon the said video cassettes nor any receipt was obtained from Returning Officer. He could not tell as to whether the said three cassettes are the same cassettes which had been handed over to Returning Officer but he would be able to depose only after the cassettes are played on the Video Cassette Recorder (VCR). However, with the consensus of counsel for the parties, the video cassettes were played as had been requested by the witness. After seeing the picturisation of the cassettes, the same have been identified to be the same cassettes which have been prepared by him. He further deposed that there were two video cameras by virtue of which video filming was carried out. Shri Lakhwinder Singh was operating the second camera who has been his employee and that both the cameras belonged to him. The said Video Cassettes have been exhibited as Ex.RW14/1, 14/2, 14/3. The said witness was subjected to cross-examination by the counsel for the petitioner but nothing tangible has been elicited. The factum of recording of the video film stands corroborated and amply proved. 46. Similarly, Lakhwinder Singh appeared as RW15 and has corroborated the averments made by Shri Rajinder Kumar alias Raju, RW14. There is nothing which has been brought out in cross-examination for demolition the facts averred by the aforesaid witness. 47. Lastly, the respondent No. 1 examined Shri Bir Devinder Singh RW16, who has held the office of General Secretary, Punjab Pradesh Congress Committee since 1997 till the date of deposition continues to hold the said office. There is nothing which has been brought out in cross-examination for demolition the facts averred by the aforesaid witness. 47. Lastly, the respondent No. 1 examined Shri Bir Devinder Singh RW16, who has held the office of General Secretary, Punjab Pradesh Congress Committee since 1997 till the date of deposition continues to hold the said office. He was appointed as election agent of the Congress Party and has substantially corroborated averments made by respondent No. 1. He has also corroborated documents Ex.PW3/2 to RW3/9 and has identified his signatures which have been exhibited as Ex.RW16/1 to RW16/5 and that similarly, on signatures upon documents exhibited as Ex.RW16/1 which has been exhibited as RW16/A6. He also corroborated the fact that two observers appointed by Election Commission were present at the time of counting of votes and in fact they continued to be present till declaration of result. He further corroborated that some officers of Government of Punjab also visited the premises concerned and that according to him said officers were Inspector General of Police (Zone), Mr. Aujla, Deputy Commissioner, Jalandhar Shri Som Nath and Senior Superintendent of Police, Mr Paramjit Singh Gill and Superintendent of Police (Zone) CID, Jaskaran Singh. He has stated that no objection was ever raised by any of the candidates or the representatives or the election agents relating to counting which was going on. It is only after completion of 6th round and declaration thereof and when it was displayed on the black board, the petitioner Shri Dalvir Singh Dhirowal raised objection relating to counting and that he filed an application before the Returning Officer and that similarly some more applications had been filed by some candidates, namely, Smt. Vidhwant Kaur, Waryam Singh and one more application was filed but the same was not signed by any person. He further stated that all these applications were in fact written by Mr. Dhillon who was commonly known as Vakil Sahib. 48. On the request of this witness, the video cassette was played in Court in the presence of counsel for the petitioner and respondents. During the picturisation of cassettes, some persons have been identified by the said witness. He identified Vidhwant Kaur describing her attire, he also identified the petitioner Shri Dalvir Singh Dhirowal. He also identified observers who were shown to be carrying identification metallic strips on the pockets of their coats displaying their names. During the picturisation of cassettes, some persons have been identified by the said witness. He identified Vidhwant Kaur describing her attire, he also identified the petitioner Shri Dalvir Singh Dhirowal. He also identified observers who were shown to be carrying identification metallic strips on the pockets of their coats displaying their names. He also identified Mr. Dhillon commonly known as Vakil Sahib. He identified number of persons i.e., Anoop Minhas, Balwinder Singh Bhundar who was appointed election agent of Waryam Singh an independent candidate, Shri Surinder Singh an independent candidate, S.S.P. Paramjit Singh Gill, Deputy Commissioner, Som Nath when both the officers were seen sitting on the table of Returning Officer. He also identified Aujla, I.G. (Zonal). He also pointed out result of 3rd round of votes counted and result thereof shown to have been written down on the black board, according to which Kanwaljit Singh Lalli, the returned candidate is shown to have polled 6520 votes and the petitioner is shown to have polled 4984 votes. He also pointed out result of sixth round notified on the black board and that the returned candidate is shown to have polled 5156 votes and the petitioner 5777 votes. The second cassette was also played but nothing additional was required to be identified by the witness as the persons who had already been identified in the previous cassette were again being seen in the second cassette. Third cassette was played wherein Jaskaran Singh, SP, CID, Zonal was identified by the witness. It is his entry into the concerned premises which was objected to by the returned candidate and so also the witness. The result of round No. 4 was also written down on the black board and in pursuant thereto, respondent No. 1 is shown to have polled 6148 votes and the petitioner Dalvir Singh Dhirowal shown to have polled 5658 votes. Likewise, votes polled by the other candidates were written down on the black board. All the three cassettes were played in Court room in the presence of counsel for the petitioner and counsel for the respondents. The petitioner and respondent No. 1 have also been present in the court room at the time when the cassettes were played. It is worthwhile to note here that picturisation of the cassettes was not objected to by any one. 49. The petitioner and respondent No. 1 have also been present in the court room at the time when the cassettes were played. It is worthwhile to note here that picturisation of the cassettes was not objected to by any one. 49. The witness, i.e., RW16 was subjected to cross-examination after the cassettes had been played in full. He has categorically stated that he had been assigned duty on the table of Returning Officer. It has been categorically denied by him that he visited any table because he was assigned duty on the table of Returning Officer. In any case, he did move around in the hall but did not specifically note counting which was going on the tables. It has been stated by him that no objection was raised by the petitioner with regard to counting of ballot papers on the tables in his presence. It has also been emphatically stated that disputed votes were brought on the table of Returning Officer on completion of each round and thereafter, the same were duly accepted or rejected accordingly. He has also denied that the petitioner was not shown serial numbers of ballot papers which were disputed or doubted in respect of which decision was being taken by Returning Officer. He has also categorically denied the suggestion that the petitioner raised any objection to the effect that his votes were being incorrectly rejected and were not counted in his favour and that the rejected votes which in fact had been casted in favour of respondent No. 1 had been wrongly accepted. He has also emphatically denied that in the video film, the observers have been shown only in the beginning and at the end but in fact they remained absent for substantial period. It has been categorically stated that in fact they remained present throughout the counting. 50. In the cross-examination, nothing could be elicited which could belie the facts pointed out in video cassettes which were played in the presence of counsel for the parties. 51. Learned counsel for the petitioner has addressed arguments on issue Nos. 4 and 3 of which onus to prove was on the petitioner. Issue No. 4 52. Learned counsel for the petitioner has argued that wrongful rejection of nomination papers of Jiwan Singh son of Shri Joga Singh one of the candidates would tantamount to declaring the election in question as invalid. 4 and 3 of which onus to prove was on the petitioner. Issue No. 4 52. Learned counsel for the petitioner has argued that wrongful rejection of nomination papers of Jiwan Singh son of Shri Joga Singh one of the candidates would tantamount to declaring the election in question as invalid. It has been argued that Shri Jiwan Singh filed his nomination papers defining himself as a candidate of Shiromani Akali Dal (Smiranjit Singh Mann), since the said party is an unrecognised political party, the nomination papers have been proposed by ten electors as envisaged under law. However, Returning Officer rejected nomination papers of Jiwan Singh by giving the reasons as under :- "the nomination paper is subscribed by ten proposers being electors of the constituency ." 53. It is argued that the nomination papers otherwise valid has been wrongfully rejected. My attention has been drawn to Section 100(1)(c) of the Representation of People Act, 1951 (hereinafter referred to as "the Act"). The relevant portion of the provision reads as under :- "xxx xxx xxx xxx 100. Grounds for declaring election to be void. - (1) Subject to the provisions of sub-section (2) if the High Court is of opinion - (c) that any nomination has been improperly rejected; or xxx xxx xxx xxx" 54. It has been further contended that the nomination papers of Jiwan Singh having been duly filed after being proposed by ten electors, could be treated as having been filed by an independent candidate and not having been filed by a political party, which admittedly is not a recognised party. My attention has been drawn to Section 33(1) of the Act, which reads as under :- "xxx xxx xxx xxx 33. Presentation of nomination paper and requirements for a valid nomination. My attention has been drawn to Section 33(1) of the Act, which reads as under :- "xxx xxx xxx xxx 33. Presentation of nomination paper and requirements for a valid nomination. - (1) On or before the date appointed under Clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven Oclock in the forenoon and three Oclock in the afternoon deliver to the Returning Officer at the place and specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer : Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency : Provided further that no nomination paper shall be delivered to the Returning Officer on a day which is a public holiday : Provided also that in the case of a local authorities constituency, graduates constituency or teachers constituency, the reference to "an elector of the constituency as prosper" shall be construed as a reference to ten per cent of the electors of the constituency or ten such electors, whichever is less, as proposers. xxx xxx xxx xxx" 55. It has been argued that the Returning Officer was required to give brief statement of his reason for rejection, which has been given. Meaning thereby that on all other counts, the nomination paper was accepted as valid. In this context, reference has been made to Section 36(6) of the Act, which reads as under :- "xxx xxx xxx xxx 36. Scrutiny of nominations. - (6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. xxx xxx xxx xxx" 56. It has been further contended that it has been specifically pleaded in para Nos. 15 and 16 that the nomination was proposed by ten electors and that the names of the said electors have also been given in para No. 16. xxx xxx xxx xxx" 56. It has been further contended that it has been specifically pleaded in para Nos. 15 and 16 that the nomination was proposed by ten electors and that the names of the said electors have also been given in para No. 16. The nomination paper of Jiwan Singh has been exhibited as Ex.PW20/2 (the exhibition of the document was objected to by learned Counsel for the contesting respondent). The signatures of Returning Officer have also been exhibited as Ex.PW20/3 and PW20/4. Since the nomination paper was not rejected on any other ground except that it is being rejected as the nomination paper of main candidate has been accepted, this reason has been incorrectly given and therefore it can be read as improper rejection. Reliance has been placed upon the judgment of the Apex Court rendered in Krishna Mohini v. Mohinder Nath Sofat, 1999(4) RCR (Civil) 677. The argument is that the case of the petitioner is covered by the aforesaid judgment as in that case also, the nomination papers of two candidates had been wrongly rejected by the Returning Officer as the said candidates had also claimed themselves to be alternative candidates of the parties which were though registered but not recognised and that in case of both the candidates, the nomination papers were proposed by ten electors of the constituency. Therefore, both were entitled to be treated as independent candidates and that none of the nomination papers filed by them could have been rejected on the ground that the papers of main candidates have been accepted. This rejection has been termed as improper rejection as envisaged under Section 100(1)(c) of the Act. 57. On the other hand, learned Counsel for the respondents has argued that the nomination papers of Shri Jiwan Singh is not a valid nomination paper. Even if, the rejection on the ground that the paper of the main candidate has been accepted, be ignored, it is the settled law that in case, the candidature of unrecognised party is to be considered, the said nomination paper shall be proposed and signed by at least ten electors of the constituency. The proposers of the candidature of Jeewan Singh shown on the nomination paper, though not admitted into evidence, shows that signatures of only six persons can be seen and that others have presumably thumb marked the same. The proposers of the candidature of Jeewan Singh shown on the nomination paper, though not admitted into evidence, shows that signatures of only six persons can be seen and that others have presumably thumb marked the same. However, under the thumb mark, only the word LTI has been noted but no name of the person who has thumb marked the same has been given. It has been further argued that such mark is required to be given in the presence of the Returning Officer or the Presiding Officer or such other officer as may be specified in this behalf by the Election Commission and further such officer is required to satisfy himself vis-a-vis identity of the persons and the said mark is further required to be attested as being the mark of that person. The document shows that the said thumb marks have not been attested by any one. My attention has been drawn to Section 2(1)(i) of the Act which reads as under :- "xxx xxx xxx xxx 2. Interpretations. - (1) In this Act, unless the context otherwise requires, - (i) "sign" in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed : xxx xxx xxx xxx" 58. The authentication has been further prescribed as envisaged under Rule 2(2) of the Conduct of Election Rules, 1951 (hereinafter referred to as "The Election Rules") which reads as under :- "xxx xxx xxx xxx 2. Interpretations. - (1) In this rules, unless the context otherwise requires, - (2) For the purposes of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if - (a) he has placed a mark on such instrument or other paper in the presence of the returning officer or the Presiding Officer or such other officer as may be specified in this behalf by the Election Commission, and (b) such officer on being satisfied as to his identity has attested the mark as being the mark of that person. xxx xxx xxx xxx" 59. xxx xxx xxx xxx" 59. It has been further argued that the petitioner has no where pleaded that the prospers had duly affixed their signatures and that even if it had been pleaded, the same could not have been accepted in the absence of mark having not been attested and having not been given in the presence of the Returning Officer or the Officer so duly authorised. My attention has been drawn to the statement made by PW20 Shri Surjit Singh, Sub Divisional Assistant who had been assigned duty as Assistant for assisting the Returning Officer during the assembly elections in question. He has categorically stated that none of the nomination papers were filled in his presence but in any case they were filed in his presence and the factum of having been filed stands corroborated by affixation of signatures by the Returning Officer in his presence. He categorically declined that he could not identify the thumb marks of the prospers which are borne on the nomination papers. Apart from him, PW3 Shri Dalvir Singh Dhirowal, the petitioner has admitted that he was not present on the date of scrutiny of the nomination papers and that at the time of scrutiny of nomination papers, his son had gone there. The son of the petitioner Shri Kulwant Singh has appeared as PW21 who has categorically admitted that he was present at the time of scrutiny of nomination papers and further admitted that he cannot say as to whether the nomination paper of Jiwan Singh has been correctly rejected or not and he has further corroborated that Jiwan Singh in fact was not present at the time of scrutiny of nomination papers. 60. It is argued that no valid nomination paper had been presented before the Returning Officer and that even if the rejection on the ground that the nomination paper of the main candidate has been accepted is ignored, no valid nomination can be said to have been filed by Shri Jiwan Singh. It is argued that wrongful rejection of otherwise invalid nomination papers would not constitute a ground as envisagted under Section 100 of the Act for declaring the election invalid. 61. Reliance has been placed upon a judgment of the Apex Court in re : Rattan Singh and another v. Ch. Atma Ram and others, AIR 1954 SC 510. It is argued that wrongful rejection of otherwise invalid nomination papers would not constitute a ground as envisagted under Section 100 of the Act for declaring the election invalid. 61. Reliance has been placed upon a judgment of the Apex Court in re : Rattan Singh and another v. Ch. Atma Ram and others, AIR 1954 SC 510. The relevant extract from the aforesaid judgment, which is applicable to the present case, reads as under :- "xxx xxx xxx xxx "the definition of "sign" indicates that in the case of illiterate persons it is necessary to guard against misrepresentation and fraud by requiring that their signatures should be formally authenticated in a particular way." xxx xxx xxx xxx" Further it has been held therein which reads as under:- "xxx xxx xxx xxx Where the nomination papers are not "signed either in one way or the other as contemplated by Section 33, they have not been "subscribed" because "scbcribing" imports a "signature" and as the Act sets out the only kinds of "signatures" which it will recognise as "signing" for the purposes of the Act, there are no valid signatures of either a proposer or a seconder in the nomination papers. The Returning Officer is, therefore, bound to reject them under Section 36(2)(d) of the Act because there is a failure to comply with Section 33, unless he can have resort to Section 36(4)." xxx xxx xxx xxx" Further the observation has been made :- "Attestation to the mark placed by an illiterate person on nomination papers is as the case of a will or a mortage and is on the same footing as the "subscribing" required in the case of the candidate himself. If there is no signature and no mark the forms would have to be rejected and their absence could not be dismissed as technical and unsubstantial. The "satisfaction" of the Returning Officer which Rule 2(2) of the Rules, 1951 requires is not any the less important and imperative. Thus, the question of attestation in such cases is not mere technical or unsubstantial requirement." 62. Same view was taken by the Apex Court in Re : Ram Dayal v. Brijraj Singh and others, AIR 1970 SC 110. 63. Thus, the question of attestation in such cases is not mere technical or unsubstantial requirement." 62. Same view was taken by the Apex Court in Re : Ram Dayal v. Brijraj Singh and others, AIR 1970 SC 110. 63. It shall be appropriate to notice an observation made in re : Bhogendra Jha v. Manoj Kumar Jha, 1996(3) RCR(Civil) 311, it has been held that the Returning Officer is not expected to conduct a roving enquiry. If the candidates were allegedly present during scrutiny but did not ask for opportunity nor attempted to satisfy the Returning Officer as to the correctness of their particulars, such candidates have to be termed as dummy candidates to be used as reserve material to impugn the election of the retuned candidate in the event of the election result going against any unsuccessful candidate. The situation would be worse if the candidate is not present himself nor is represented through an agent and couldnt careless attitude" has been adopted, the status of such candidate is much worse than a dummy candidate. Election cannot be held void on the ground of rejection of papers of such dummy candidates. The perusal of the nomination paper shows that there are signatures of only six persons and the rest have given the marks (thumb impressions) but it is not decipherable as to whose thumb mark it is and yet by no piece of evidence it has been established that the said marks have been given in the presence of official authorised for this purpose and that the said marks have not been attested as is statutorily required in this regard. Somewhat similar situation had arisen in re : Garja Singh v. Smt. Rajinder Kaur Bhattal, E.P. No. 11 of 1997 decided on March 6, 1998 by this court and the dicta of the Apex Court has been noticed and applied accordingly. 64. Thus, the argument of the learned Counsel for the petitioner cannot be accepted that if the rigour of improper rejection is applied, the paper of Jiwan Singh could not have been rejected and that on this ground alone, the election held has to be declared invalid. The improper rejection can only be taken advantage of it otherwise the nomination paper is valid on all other counts. The improper rejection can only be taken advantage of it otherwise the nomination paper is valid on all other counts. In the case at hand, the nomination paper of Jiwan Singh cannot be termed as a valid nomination paper if it is taken to have been filed as an independent candidate as the same cannot be said to have been "signed" by 10 proposers (electors) which is the condition precedent for an independent candidate. Thus the argument is devoid of any merit and the same is rejected. 65. It has been further argued by learned Counsel for the respondent that the document, i.e., the nomination paper cannot be accepted as a valid piece of evidence as the objection had been raised vis-a-vis the mode of proof. Admittedly, the document has been signed by Jiwan Singh and allegedly the signatures of some of the proposers are shown on the said document, neither Jiwan Singh nor any of the proposers have stepped into witness box for proving the document. Since the document has not been proved in accordance with law, the same cannot be seen as a valid piece of evidence. 66. It has been further argued that the respondent has categorically pleaded that the nomination paper of Jiwan Singh has been correctly rejected and that by way of cross-examination of the witnesses of the petitioner, it has been categorically elicited that procedure as provided under law for attesting the mark of those who are unable to sign has not been followed and that it is alleged to have been signed by only six persons, whereas under law, the nomination paper if not being accepted to have been proposed by a recognised party, is required to be signed and proposed by ten electors. The nomination paper in question, though not admitted, does not carry the signatures of ten proposers, as such, the argument of the petitioner is not sustainable. 67. I have given my thoughtful consideration to the respective arguments of the learned Counsel and I am not impressed by the arguments of the learned Counsel for the petitioner. The wrongful rejection of a nomination paper cannot be equated with improper rejection as envisaged under Section 100 of the Act. The authority cited at the bar by the learned Counsel for the petitioner is not applicable squarely to the facts of this case. The wrongful rejection of a nomination paper cannot be equated with improper rejection as envisaged under Section 100 of the Act. The authority cited at the bar by the learned Counsel for the petitioner is not applicable squarely to the facts of this case. The case before the Honble Apex Court pertained to the nomination papers of the candidates where there was a due proposal by ten electors of the constituency. The question was not at issue whether there is a valid nomination paper or not. In the case at hand, it is required to be seen as to whether valid nomination papers of Jiwan Singh had been filed before the Returning Officer, the perusal of the nomination papers fairly and squarely shows that it has not been signed by ten electors. Out of the persons named, four have given their thumb marks which do not carry the names of the persons to whom they belong to nor it has been alleged or proved by way of oral evidence that they had been given in front of the Returning Officer or the officer so authorised and that further the said thumb impressions have not been attested by the officer so authorised. Thus, even if the reasons of rejection by the Returning Officer are ignored, no valid nomination can be said to have been filed by Jiwan Singh. The petitioner has not pleaded that the nomination paper had been duly signed by the proposers nor it has been proved by way of oral evidence. In fact no case has been made out that there has been "improper rejection of a valid nomination paper," even if the rejection is termed as improper yet the nomination paper could not have been accepted being invalid on the face of it. The Court can judge as to whether the nomination paper can be accepted as valid de hors of reasons of rejection by the Returning Officer. Reference may be made to Mohd. Ayub Khan v. Beli Ram and others, AIR 1962 J&K 24. Relevant portion of the judgment reads as under :- "It is open to the successful party to show before the Election Tribunal that the order of the Returning Officer rejecting nomination papers of his opponent was fully justified on grounds other than those dealt with by the Returning Officer." 68. Relevant portion of the judgment reads as under :- "It is open to the successful party to show before the Election Tribunal that the order of the Returning Officer rejecting nomination papers of his opponent was fully justified on grounds other than those dealt with by the Returning Officer." 68. Thus, the argument of learned Counsel for the petitioner is not sustainable and the same is rejected. So far as exhibition of the document is concerned, I am afraid, argument of the learned Counsel for the respondent is not sustainable as the document presented before the Returning Officer had been received and in turn of having received the same, the Returning Officer had affixed signatures and the same had been rejected and the order of rejection also bears the signatures of the Returning Officer. The document has been therefore correctly received into evidence. 69. In view of the above, the findings on issue No. 4 are returned against the petitioner and in favour of the respondents. 70. Issue No. 3. Learned counsel for the petitioner has submitted five fold arguments so far as this issue is concerned. 71. Firstly, it has been contended that Returning Officer has wrongfully accepted votes despite the fact that such ballot papers deserved to be rejected being violative of the provisions of law, yet have been counted in favour of respondent No. 1 (the returned candidate). Secondly, the ballot papers which could not have been rejected and the votes having been casted in favour of the petitioner, have been wrongfully rejected. Thirdly, the total number of ballot papers taken out of the ballot papers has been defined and accepted as 82937 whereas the result has been declared on the basis of 82930 ballot papers counted in six rounds, apart from postal ballots received by Returning Officer. Fourthly, Returning Officer did not carry out sample inspection as required to be carried out under the provisions of law. Fifthly, the margin of votes by which respondent No. 1 has been declared elected is only six and that the number of votes retrieved from the ballot boxes and counted being short by 7 votes, the case of seeking recount is made out and that a direction in this regard ought to be given. 72. Fifthly, the margin of votes by which respondent No. 1 has been declared elected is only six and that the number of votes retrieved from the ballot boxes and counted being short by 7 votes, the case of seeking recount is made out and that a direction in this regard ought to be given. 72. On the first count, it has been submitted that about 17 votes which in fact were liable to be rejected have been wrongly accepted in favour of respondent No. 1. It is argued that out of these 17 votes, four were such votes which were mutilated and were liable to be rejected but despite the objection were counted in favour of respondent No. 1. Similarly, four more votes which were seen on table Nos. 5, 6 and 7 which were found torn in pieces but were pasted with cello tape and have been accepted in favour of respondent No. 1. Apart from the eight votes, six more votes which were liable to be rejected on the ground that impression of the seal was found between the line of two candidates were counted in favour of respondent No. 1. Another three votes where signatures as thumb impression against symbol of respondent No. 1 upon ballot papers were found were required to be rejected, the same have been accepted in favour of respondent No. 1. 73. Apart from the above 17 votes there are another 17 votes which were required to be rejected on the ground that impression of the seal on the reverse side of the ballot paper were seen but the said ballot papers were accepted in favour of respondent No. 1. Yet another 7 votes which in fact were polled in favour of the petitioner were mixed in the bundles of ballot papers of respondent No. 1 and counted in his favour and that resultantly these votes were counted less to the lot of the petitioner. By this act, total number of votes shown as casted in favour of respondent No. 1 stood increased by the said number. 74. Learned counsel for the petitioner has addressed arguments on this point and has read the oral evidence but no meaningful supportive evidence has been referred to for returning a finding in favour of the petitioner. By this act, total number of votes shown as casted in favour of respondent No. 1 stood increased by the said number. 74. Learned counsel for the petitioner has addressed arguments on this point and has read the oral evidence but no meaningful supportive evidence has been referred to for returning a finding in favour of the petitioner. Nothing has been brought on record showing the serial number of such ballot papers and to the contrary the answer has been given by the witnesses that the serial number was not allowed to be noted, this pleas is too vague and weak to be relied upon for accepting the argument of learned Counsel for the petitioner. 75. It is the settled law that the pleadings have to be categoric, clear and unambiguous, the perusal of the pleadings shows that the petitioner himself is not sure as to how many votes suffered from the infirmities which have been spelt out as aforesaid, as the word "about" has been used but no definite number has been given. The averments are incomplete and also have not been substantiated by oral evidence as well. If such kind of irregularity had been noticed by the counting agent/election agent/the candidate, such illegality/irregularity would have been spelt out by way of writing complaint. All along every witness and the petitioner himself has stated that only oral complaint was made. It shall be too much to accept the contention on the basis of ambiguous evidence and incomplete pleadings and uncorroborated evidence. The thread has been brought on record but unfortunately, no knot has been made to catch the rigour leaving any escape route. Thus the argument is unimpressive and not sustainable. 76-77. The second contention is that the votes though casted in favour of the petitioner have been wrongfully rejected. It has been contended that there were about 115 such votes and that out of which 35 votes were those which have been clearly polled in favour of the petitioner but wrongly rejected on the ground that the said votes had identification marks. The smudges of thumb impression of voters due to handling of ballot papers were also read against the petitioner and the said votes have been rejected. The smudges of thumb impression of voters due to handling of ballot papers were also read against the petitioner and the said votes have been rejected. It has been further argued that during round number 2, two votes on each table i.e., table No. 2, 5, 8, 12 had been rejected on the ground of identification mark. Similarly, during round No. 3 at table Nos. 2 and 10, two to three votes on each table were rejected on the ground of identification mark. Further in the fourth, fifth and sixth round at table Nos. 5, 6, 8 and 13, two to three votes on each table were also rejected on similar ground. 78. Another 40 votes of the petitioner were rejected on the ground that the impression of the seal was touching the line between column of the petitioner and the other candidates. Another 20 votes are stated to have been illegally rejected on the ground that these votes have double impression of the seal, whereas, the double impression had appeared on account of incorrect folding of ballot papers. Further it has been stated that 20 votes were rejected on other flimsy grounds but no such ground has been/have been stated in respect thereof. 79. This contention also suffers in the similar manner as the first contention. The blank statements without any corroborative evidence cannot make out a case for disturbing the result on account of which the petitioner has lost the election. The argument is, therefore, repelled and rejected. 80. The third contention is that total number of ballot papers taken out of ballot boxes has been accepted as 82937 whereas the result has been declared on the basis of 82930 ballot papers, which are stated to have been counted in six rounds and that number is apart from the six ballot papers received by post by the Returning Officer. In this regard, my attention has been drawn to exhibit PW20/6-A (running into 8 pages) which is form No. 20 Part I, the perusal of this document discloses the number of ballot papers which were retrieved from the ballot boxes from respective polling stations. The grand total of the said votes retrieved is stated to have been counted as 82937. Reference has been made to the document Ext.PW20/5 (running into 7 pages). This is again form No. 20 Part II incorporating final result sheet. The grand total of the said votes retrieved is stated to have been counted as 82937. Reference has been made to the document Ext.PW20/5 (running into 7 pages). This is again form No. 20 Part II incorporating final result sheet. The persual of this document shows noting of the number of votes shown to be polled in favour of the candidates and counted on respective tables. It may be noticed here that as per oral evidence, which is admitted by both sides, the votes were counted on 14 tables and the total counting took place in six rounds. The result elicited in each round has been given in a tabulated form on one sheet each for all six rounds. On the last sheet, the cumulative result of six rounds has been tabulated. The total number of votes on the basis of which result has been declared is 82930 and that six votes are shown to have been received through post and the result thereof has been tabulated accordingly. The votes which were shown to have casted in favour of the respective candidates were reflected in the respective columns in the form. Learned counsel has also drawn my attention to the statement of PW20 Shri Surjit Singh, Sub Divisional Assistant. The said witness has categorically stated that he had been assigned duty to assist Returning Officer during the Assembly bye-election which was held in Adampur Assembly Constituency. He had also been assigned duty to assist Returning Officer at the time of counting as well. The aforesaid documents have been exhibited by the said witness and at the time of exhibiting the same, no objection was raised by the other side. He has categorically stated that total number of ballot papers which have been retrieved from the ballot boxes were counted as 82937 and he has further stated that six ballot papers have been received by post which were kept by Returning Officer in her custody. It shall be apposite to notice the extract of relevant portion of evidence which reads as under :- "xxx xxx xxx xxx The form is Ex.PW20/5 (running into 7 pages). Each page bears the signature of the Returning Officer. The total number which had been retrieved from the ballot boxes were counted as 82937. Six ballot papers had been received by post. Each page bears the signature of the Returning Officer. The total number which had been retrieved from the ballot boxes were counted as 82937. Six ballot papers had been received by post. The ballot papers which had been received by post were kept in the custody of the Returning Officer. The Returning Officer used to receive the report from each table as to how many votes were casted in favour of which candidate and on the basis of that a consolidated form was prepared identifying the votes of each candidate, which were duly signed by the Returning Officer. I have seen the said form. It is correct that it is the same form and it bears the signature of Returning Officer and the same is Ex.PW20/6A containing eight pages. The result was declared on the basis of the total votes numbering 82930 excluding the ballot papers received by post. xxx xxx xxx xxx" 81. He has also corroborated the fact that result was declared on the basis of total votes numbering 82930 excluding the ballot papers received by post. 82. This fact that 82937 votes were counted has also been stated by the petitioner. Similar statements have been made by PW6 to PW14, PW16 to PW19 and PW21. It has been argued that no suggestion has been put to these witnesses that the number of votes counted before the commencement of the counting round-wise was given incorrectly and also there is no suggestion to any of these witnesses that the figures which have been given in PW20/6-A could suffer from mathematical error. Since this statement of the witnesses have gone unrebutted and that some of them have categorically stated that result had been declared on the basis of 82930 ballot papers. Thus makes out absolutely foolproof case for recount. 83. It has also been argued that in sixth round on table No. 1, only 994 votes are shown to have been taken out, whereas, in fact 1000 votes had been taken out and that six votes casted in favour of the petitioner had been kept away and that the petitioner has been shown defeated by six votes only. If recount is allowed, the true and correct facts would emerge : (i) as to whether the number of votes retrieved from the ballot boxes before starting the counting round-wise was 82937 or 82930. If recount is allowed, the true and correct facts would emerge : (i) as to whether the number of votes retrieved from the ballot boxes before starting the counting round-wise was 82937 or 82930. Secondly, it would become crystal clear whether on table No. 1, 1000 votes had been taken out or 994. The argument is that both these facts can be ascertained only by way of ordering recount of the total votes and if by recount the number comes to 82937, then the recount candidate-wise would give the correct result. The result would be obvious if the said seven votes are found to have been casted in favour of the petitioner and cannot be subjected to rejection, the end result would be far too obvious. 84. On the other hand, learned Counsel for the respondent has argued that the figure of 82937, which has been relied upon by the petitioner on the basis of the document exhibited as Ex.PW20/6-A, is not sustainable. On the face of it, the document Ex.PW20/5 wherein the votes counted upon each table have been duly reflected, the sum total of which reflects as 82930, if for argument sake, it is accepted that on table No. 1, 1000 ballot papers have been taken out for counting and not 994, still the total would be 82936 and not 82937. Thus, by no stretch of imagination, the figure given in Ex.PW20/61-A can be accepted as the correct figure. Learned counsel for the respondent Mr. S.C. Kapoor, Senior Advocate has referred to statements of PW20 and PW21 and other witnesses who have categorically admitted that bundle of 25 votes each were made at the time of retrieving the total votes before the starting of the counting roundwise, yet on various counts, less than 25 votes were found in each bundle. It may be noted here that there was no categoric answer by any of the witnesses that on which table less than 25 votes were found in one, two or more bundles. The suggestion given is too wise and that the wise answer has been given by the witnesses. It may be noted here that there was no categoric answer by any of the witnesses that on which table less than 25 votes were found in one, two or more bundles. The suggestion given is too wise and that the wise answer has been given by the witnesses. The oral evidence produced by the respondent including the returned candidate, who has examined himself as RW1, no case has been set up or even a word has been said that the total votes counted 82937 as alleged by the petitioner are wrong and that the correct votes counted out of the ballot papers were 82930. It has also not been said that the document Ext.PW20/6-A cannot be relied upon and that there could be a mathematical error. However, learned Counsel for the respondent has vehemently argued to discredit the document Ext.PW20/6-A by placing total reliance upon the document Ex.PW20/5. However, with all due diligence and the expertise, learned Counsel has not been able to reflect discredit of any kind upon the document which has been exhibited as Ex.PW20/6-A. To the contrary the official witness i.e., PW20 Shri Surjit Singh has categorically stated that the total number of ballot papers retrieved from the boxes were counted as 82937 and he has further corroborated the fact that the result has been declared on the basis of 82930 votes, apart from six votes which have been received through post by Returning Officer. Thus, it is obvious that this part of the statement has remained unrebutted as no negative suggestion in this regard has been given to the witness. 85. I have given my thoughtful connot sideration to the respective arguments addressed by the learned Counsel for the parties on this point. Since the evidentiary status of Ex.PW20/6-A has not been demolished and that the status of Ex.PW20/5 has not been accepted by the respondent, the comparison of both the documents shows the discrepancy of seven votes and that the returned candidate has won the election by six votes only. This discrepancy cannot be overlooked on the ground that the same can be termed as mathematical error. 86. The learned Counsel has not addressed meaningful arguments to the effect that this difference of figures is mere technical or unsubstantial fact and that on the basis of the same, the election cannot be declared invalid. This discrepancy cannot be overlooked on the ground that the same can be termed as mathematical error. 86. The learned Counsel has not addressed meaningful arguments to the effect that this difference of figures is mere technical or unsubstantial fact and that on the basis of the same, the election cannot be declared invalid. Learned counsel has made reference to various judgments and has argued that recount cannot be ordered merely on the asking and that a prima facie strong case has to be made out. Reference has been made to a judgment of the Apex Court in V.S. Achuthanandan v. P.J. Francis and another, AIR 2001 Supreme Court 837. It has also been argued that for recount contemporaneous evidence is required and that the comparison of two figures given in the two documents as aforesaid, shall not bring that piece of evidence within such ambit. Reliance has been placed upon judgments of the Apex Court in D.P. Sharma v. The Commissioner and Returning Officer and others, AIR 1984 Supreme Court 654, Shri Satyanarain Dudhani v. Uday Kumar Singh and others, AIR 1993 Supreme Court 367 and M.R. Gopalakrishnan v. Thachady Prabhakaran and others, JT 1995(1) SC 202. It has also been argued that no objection in this regard has been raised during the counting and no irregularity had been pointed out in this regard, as such, no recount can be ordered. Reliance has been placed upon M. Omkar v. Revuri Prakash Reddy and others, 1999(4) SCC 500 and Mahant Ram Prakash Dass v. Ramesh Chandra and others, 1999(9) SCC 420. 87. It is true that recount cannot be ordered merely on the asking or at the drop of the hat and that a prima facie strong case has to be made out, but when the facts become to obvious and would not require asking and that such facts prick the conscience and that a right of an individual is found obviously suffering and that recount is the ultimate answer or the healing touch, and which would elicit the correct result, such course must be adopted. So far as status of evidence is concerned as discussed above, the statement of the official, who has appeared as PW20, has gone unrebutted as he has definitely and categorically stated that 82937 votes were retrieved from the ballot boxes and the count so made was written down in Form No. 20 Part I which has been exhibited as Exhibit PW20/6-A. The exhibition of the document has not been objected to and that the second document, i.e, Form No. 20 Part II has also been exhibited as Ext.PW20/5 by the same officer and he has further corroborated that the votes counted have been entered in the said form. The perusal of the form shows that it bears the signatures of Returning Officer and that the total also has been done. The total number of ballot papers is at variance, i.e., 82937 and 82930. The plea of mathematical error has been taken too late in the day and the perusal of written statement filed by respondent No. 1 also shows that there is no definite plea taken in this regard except that mechanical denial has been made. The argument that no objection was raised during the counting is also not convincing. The recount has been asked by the petitioner which fact has been admitted almost by all the witnesses including the star witnesses of the respondent but the argument is that in the said application, no allegation has been levelled that there is a difference of total number of votes shown in Form No. 20 Part I and Form No. 20 Part II. However, the difference which has been referred to before this Court certainly forms a clincher. If upon recount the number of total votes retrieved from the ballot boxes comes to 82937, the 7 votes would definitely be seen and the result would turn on the basis of 7 votes if the same are shown to be validly casted in favour of the petitioner. If the gap had been more by which the respondent may have been winning, the exercise would be in futility. I am afraid the judgments relied upon by learned Counsel for the respondent are not applicable to the facts of this case. 88. The facts elicited in this regard overweigh ones conscience to declare the scrutiny by way of recount of votes. I am afraid the judgments relied upon by learned Counsel for the respondent are not applicable to the facts of this case. 88. The facts elicited in this regard overweigh ones conscience to declare the scrutiny by way of recount of votes. There is no difference of opinion with regard to the principle that recount of ballot papers cannot be and should not be ordered just on the asking of a defeated candidate. Thus maintaining of secrecy of ballot is sacrosanct but maintaining of purity of election is equally important. 89. Somewhat similar matter came up before the Apex Court, there was no difference of the primary total and the final total. The plea was that 8 votes in excess had been counted in favour of the returned candidate which in fact should not have been counted in favour of the said candidate. In the case at hand, the proposition is reverse. The shortage of 7 votes has been brought on record, i.e., the ballot papers counted at the time of retrieval from the ballot boxes is given as 82937 whereas total number of votes counted in six rounds has been given as 82930 and further the returned candidate has been shown to have won the election by 6 votes. It is imperative that the purity of election and that the voice of the public should be made absolutely transparent. The rule of transparency and the rule of law must ride together. Respectfully following the dicta of the Honble Apex Court in Mahendra Pal v. Ram Dass Malanger, 1999(4) RCR(Civil) 660, I hold that sufficient cause has been made out for ordering recount. 90. Fourthly, learned Counsel for the petitioner has argued that Returning Officer did not carry out sample inspection as envisaged and provided under law. It was incumbent upon Returning Officer to have carried out sample inspection when the allegations were levelled of wrongful rejection and acceptance of the votes casted in favour of the petitioner and/or the returned candidate. The reference has been made to the manual/instructions issued by the Election Commission of India. Learned counsel has not been able to substantiate his argument that such instructions/regulations are mandatory and not directory. In any case, learned Counsel for the petitioner has not been able to show that such in-action if accepted for argument sake shall constitute a ground for declaring election to be invalid. Learned counsel has not been able to substantiate his argument that such instructions/regulations are mandatory and not directory. In any case, learned Counsel for the petitioner has not been able to show that such in-action if accepted for argument sake shall constitute a ground for declaring election to be invalid. However, persual of the ground as contained in para 10-F of the petition shows that the plea taken by the petitioner has been contradicted by him himself. It shall be apposite to notice the ground which reads as under :- " xx xx xx xx 19(F) That the Returning Officer was supposed to check the certain percentage of votes to ensure that the correct counting was going on. However, no such counting was done. Only once on the objection of the Election agent of the petitioner that votes of the petitioner was being mixed in that of the respondent, a random checking was done and some of the votes polled in favour of the petitioner were recovered from the bundle of the respondent No. 1. xx xx xx xx" 91. On the other hand, learned Counsel for the respondent has argued that sample checking is not the rule and admittedly, no complaint is stated to have been made at the time of counting which was carried out uptill fifth round and that the objection was made only by way of filing an ambiguous application though not written by the petitioner himself but drafted by a person, who is none else but an advocate, and that he was present at the instance of the petitioner. Perusal of the said document Ext.PW3/1 shows that no such allegation has been made but a simple request for recount has been asked for. The petitioner perhaps became aware of the fact that he is going to lose the election thus to create a piece of evidence, he had asked for recount. The said application was given to the Returning Officer. It shall be appropriate to notice the contents of the application and also the order passed by Returning Officer, which read as under :- 28-11-1998" Order of Returning Officer This, request was made by Shri Dalvir Singh Dhirowal, candidate for Shiromani Akali Dal after the counting for all the rounds was over. Throughout the counting process no complaint of any sort was received from the candidate. Throughout the counting process no complaint of any sort was received from the candidate. In fact throughout the counting, the satisfaction over the counting was expressed by the applicant himself. It was only after the count of the VI round was over, and the compilation was done, that the candidate made request for recounting. He has not expressed any reason or basis for such recount. He has just expressed that he is not satisfied with the counting. Since the request has been made without any cogent reason and without any basis, the same cannot be accepted. Hence I disallow it. Recounting is not allowed. Sd/- Sarojini Gautam 28.11.1998. R.O. Adampur xx xx xx xx" 92. It is further argued that the petitioner after reading order of the Returning Officer became wiser and set up a story that another complaint was filed by the election agent of the petitioner, who is none-else but his own son, which has been exhibited as Ex.PE3/2 dated 28.11.1998. It is argued that perusal of said document shows that it has been manufactured after the declaration of result and that too almost 2 to 3 days lateron, which fact stands corroborated from the document itself which contains that 115 votes have been wrongly accepted or rejected which have been casted in favour of the petitioner or the returned candidate respectively but the votes which have been referred to, the said total does not come to 115 but the same comes to 95 only and apart from this oral evidence which has been brought on record by the petitioner discloses a common fact that the factum of improper acceptance/rejection of the votes accordingly was disclosed after about 2 to 3 days from the date of declaration of result. If this fact is accepted, how is it that this fact could be incorporated in the application which is supposedly dated 28.11.1998. It is obvious that this was nothing but an after-thought and for creating fictitious ground for the purpose of supporting the election petition. 93. I have considered the respective contentions of learned Counsel for the parties on this point and I find there is considerable weight in the arguments of learned Counsel for the respondent, the sample checking is not such kind of rigour which may fall within the ambit of the provisions of law culminating into declaration of election as invalid. 93. I have considered the respective contentions of learned Counsel for the parties on this point and I find there is considerable weight in the arguments of learned Counsel for the respondent, the sample checking is not such kind of rigour which may fall within the ambit of the provisions of law culminating into declaration of election as invalid. The plea of the petitioner is self-contradictory and is therefore not sustainable. The document which has been exhibited as Ext.P3/2 admittedly is an after-thought as it consists of those alleged facts which are allegedly disclosed by some witnesses after 2 to 3 days of declaration of result. The argument of learned Counsel for the petitioner with regard to sample inspection is not sustainable and is, therefore, rejected. 94. Thus, the finding on issue No. 3 has been dealt with argumentwise and the answer thereto has been given accordingly. The only ground which has weighed with me is that the total number of votes retrieved from the ballot boxes has been spelt out as 82937, which fact has gone unrebutted and there is no negative suggestion put to the said witness i.e., PW20. Further the number of votes counted at the time of commencement and completion of roundwise counting upon 14 tables has been deciphered as 82930 votes. The difference of 7 votes between the two forms which have been exhibited as Ex.PW20/6-A and Ex.PW20/5 has not been explained by any one. It is admitted fact that respondent No. 1 has won the election by 6 votes only and if it is correct that the number of votes retrieved were 82937, the answer to 7 votes whether they were casted in favour of the respondent (the returned candidate) or the petitioner shall divulge the correct result. For resolving the mystery as to where the 7 votes have vanished, it is necessary to order recount to resolve the discrepancy of the total number of votes counted out of the ballot boxes and counted on 6 rounds on 14 tables. Thus the irregularity is restricted only to this count and the recount is ordered accordingly. Thus issue Nos. 1 and 3 stand answered as above. Issue No. 2 95. Issue No. 2 has not been pressed as such answered in favour of the petitioner and against the respondent. 96. Thus the irregularity is restricted only to this count and the recount is ordered accordingly. Thus issue Nos. 1 and 3 stand answered as above. Issue No. 2 95. Issue No. 2 has not been pressed as such answered in favour of the petitioner and against the respondent. 96. On the basis of decision to the limited extent as aforesaid on issue No. 3 and the discussion relating thereto, it is held that the petitioner has pleaded material facts to the extent which would justify an order of inspection and recount and that cogent evidence has also been adduced conforming to form prima facie opinion that there is no explanation which is forthcoming from any quarters as to how and why there is a difference of the total number of ballot papers retrieved and counted from the ballot boxes which have been counted as 82937 and the ballot papers which have been counted out in six rounds on 14 tables numbering as 82930. The said number of votes have been spelt out and mentioned in two different documents, i.e. form No. 20, Part I disclosing 82937 votes notified upon being retrieved from the ballot boxes and form No. 20 Part II containing the figure after votes having been counted as 82930. The returned candidate has been shown to have won the election by six votes. Thus it is proved that the election of the returned candidate has been materially affected by virtue of the aforesaid discrepancy which has emerged and that seven votes being not retrievable. Thus to maintain purity of election and to correctly gauge the mind of public, all acts should be made transparent. The facts which have emerged lead to unresistable conclusion of order of inspection and recount. 97. For the reasons mentioned above, I accept the petitioners prayer for inspection and recount of the votes polled in 28-Amdampur Assembly Constituency in respect of bye-election held on 25.11.1998 and direct that :- (i) The recount of ballots be done in the High Court premises under the supervision and control of District Judge (Vigilance), Haryana. 97. For the reasons mentioned above, I accept the petitioners prayer for inspection and recount of the votes polled in 28-Amdampur Assembly Constituency in respect of bye-election held on 25.11.1998 and direct that :- (i) The recount of ballots be done in the High Court premises under the supervision and control of District Judge (Vigilance), Haryana. (ii) The District Magistrate, Jalandhar is directed to send the sealed packets of ballots per messenger; (iii) The scope of recount is as under :- (a) the total of the ballot papers shall be counted and if the number so retrieved is found equivalent to 82930, the report in respect thereof shall be submitted by District Judge (Vigilance), Haryana on the date fixed. And OR (b) in case of the aforesaid recount under (a), the number is found equivalent to the numbers i.e., 82937 as given under form No. 20, Part I, Ex.PW20/6-A, recount shall be carried out accordingly. 98. To carry out such recount Sarvshri Rameshwar Puri, Salil Sagar, Anand Chhibbar and Ms. Jai Shree Thakur, Advocates are appointed as tellers. They shall be paid a sum of Rs. 7500/- each. The remuneration of tellers shall be paid by the petitioner and respondent No. 1 in equal share and it will be condition precedent for counting of the votes. (iv) Only the parties and their counsel shall remain present at the recounting. 99. Copy of this order be given to Shri S.D. Anand, District Judge (Vigilance), Haryana for taking immediate action to get the sealed packets of the ballots from the District Magistrates, Jalandhar and thereafter fix the date for recounting as aforesaid after giving due intimation to the tellers and counsel for the parties. 100. The case be listed before this court for further orders on 10.9.2001 alongwith the report of District Judge (Vigilance), Haryana. Petition allowed.