Judgement This Election Petition under Sections 80 and 80A of the Representation of the People Act, 1951 for short, the Act is presented by Smt. Jibontara Ghatowar, hereinafter, referred to as the petitioner challenging the legality and/or validity of election of Sarbananda Sonowal, the contestant respondent No. 1, hereinafter referred to as the respondent to the 115 Moran Legislative Constituency, for short, the Constituency. 2. The petitioner, the respondent, and four others, had participated in the election to the 115 Moran Legislative Assembly Constituency, the polling of which took place on 10-5-2001. The results were declared on 14-5-2001 and the final result sheet reads as under :- Total Votes Polled No. of Rejected Votes Jibontara Ghatowar Sarbananda Sonowal 67,580 2,346 26,927 27,777 Hareshwar Changmai Joy Chandra Nagbanshi Biren Borah Lukua Changmai 1,241 7,902 995 303 3. In this Election petition, the petitioner has prayed for scrutiny and recounting of the rejected ballot papers and Ballot papers counted in favour of the respondents and thereafter declaring the result of respondent No. 1 void under Section 98B of the Act and declare the petitioner as elected. The material facts with respect to the allegations as stated out in the petition may be broadly summed up as follows :- 1. Out of Total 2436 votes rejected as many as 834 Nos. of votes in respect of polling station Nos. 11, 25, 60, 66, 76, 92, 102 and 103 were rejected for absence of the signature of the Presiding Officer and distinguishing mark or seal on the ballot papers. According to the petitioner, all these votes were casted in favour of the petitioner who had contested the election as a candidate of the Indian National Congress (I) with the symbol of hand. It is submitted that the rejections of the above votes were improper. 2. Total No. of 634 ballot papers concerning polling station Nos. 1, 8, 11, 12 and 28 which were casted in favour of the petitioner were illegally counted in favour of the respondents by placing these ballot papers in the box of the respondents. It is submitted that in some cases the Top and the Bottom ballot papers were in favour of the respondents, whereas the in-between 48 Nos. of ballot papers in the Bundle of 50 belonged to the petitioner and the entire bundle was counted in favour of the respondent. 3. It is submitted that in some cases the Top and the Bottom ballot papers were in favour of the respondents, whereas the in-between 48 Nos. of ballot papers in the Bundle of 50 belonged to the petitioner and the entire bundle was counted in favour of the respondent. 3. The arrangement in the counting hall was far from satisfactory and there was congestion in the area earmarked for the counting agent for the various political parties. It is further alleged that a large No. of unauthorised persons entered into the counting hall and interfered in the smooth counting of votes effecting the orderly counting of votes. 4. The petitioner filed two applications for re-counting of the votes but without passing any order, the results were declared in violation of the provisions of the Act. 4. The respondent who was declared elected, has contested the petition by filing a written statement. The other losing candidates did not file any written statement. The following issues were framed :- "1. Whether the allegations contained in Para 32 of the E.P. as well as the application for recounting of the votes made to the Returning Officer, made out a case for recounting of votes on the ground of materially affecting the result of the Election. 2. Was there any improper rejection of valid votes of the petitioner in course of counting of No. 115 Moran LAC in respect of polling station Nos. 1, 11, 25, 60, 64, 76, 92, 102 and 103? 3. Was there any improper reception of votes and void votes in favour of the respondent No. 1 in course of counting of votes of 115 Moran LAC in respect of Polling Station Nos. 1, 8, 11, 12, 28 and 64 by way of misplacing ballot papers containing votes cast in favour of the election petition in the compartment meant for respondent No. 1 and consequently counting the same in favour of Respondent No. 1? 4. If issue No. 4 is decided in favour of the election petitioner whether she is entitled to be declared as elected to No. 115 Moran Legislative Assembly Constituency? 5. To what other relief(s) the petitioner is entitled to?" 5. The petitioner examined as many as 11 witnesses including herself. The respondent examined himself as DW 1. The Returning Officer Sri B. K. Pegu has also examined himself and another witness Pradeep Das. 5. To what other relief(s) the petitioner is entitled to?" 5. The petitioner examined as many as 11 witnesses including herself. The respondent examined himself as DW 1. The Returning Officer Sri B. K. Pegu has also examined himself and another witness Pradeep Das. Both the sides have produced and exhibited certain documents. ISSUE No. 1 :- Para 32 of the Election Petition reads as follows :- That being aggrieved, immediately on conclusion of the counting process and prior to the preparation of the final result sheet, the petitioner filed two consecutive applications in the mid-night of 13-5-2001 addressed to the Returning Officer praying for recount of all the ballot papers. Both these applications were received on behalf of the Deputy Commissioner, Dibrugarh, who was also the Returning Officer of No. 115 Moran LAC, by his Personal Assistant on 13-5-2001 itself. However, without passing any order thereon, the Returning Officer declared the Respondent No. 1 to be the returned candidate from No. 115 Moran L.A.C. on 14-5-2001. This has violated the statutory right conferred to your petitioner under Rule 63 of the Rules of 1961 for getting a fair and due consideration of her application for recount. Typed copies of the aforesaid two applications dated 13-5-2001 filed by the petitioners are annexed herewith and marked as Annexures 3 and 4. Annexure 3 which is a handwritten letter in the handwriting of the petitioner was brought on record as Ext. 2 and the relevant portion reads as under :- "To The Returning Officer 115 Moran L.A.C. Sub : Application for re-counting Dated 13th May, 2001 Sir, With reference to the subject cited above I hereby want to state that the counting which has been taken place today is not satisfactory for me. So I want to request as a candidate of Indian National Congress from Moran Assembly Constituency for recounting of all the ballot Boxes. Thanking you, Yours faithfully, Received Sd/- J. T. Ghatowar Sd/- Illegible (J. T. GHATOWAR) 13-5-2001 I. N. C. Candidate PA to DEO 115 Moran L.A.C." For Deputy Commissioner and DEO District Dibrugarh Dibrugarh Annexure 4 as stated in Para 32 above is also handwritten and signed by the petitioner and proved as Exhibit 3. The application reads as follows :- "To Dibrugarh 13th May, 2001 The Returning Officer, 115 Moran Constituency Sub : Application for re-counting of the above 115 MORAN Cons. The application reads as follows :- "To Dibrugarh 13th May, 2001 The Returning Officer, 115 Moran Constituency Sub : Application for re-counting of the above 115 MORAN Cons. Sir, With reference to the subject mentioned above, I have the honour to request you to grant re-counting in the above MORAN 115 LAC for the following reasons below stated. (1) In Centre No. 103 where re-poll was ordered and re-poll held on 12th May, 2001 under proper security arrangement by the authority and re-poll has done peacefully in the centre. It is found that 435 (approximately) ballot papers were cast in my favour but without the signature of the Presiding Officer and distinguished marks for no fault of mine. The same is the case in Centre No. 46. In Centre No. 46 about 150 ballot papers were rejected on the above mentioned ground. (2) In centre No. 30 as per presiding Officer Diary 697 ballot papers were issued and the same were casted after counting, it was found to be 721. (3) Many of the countersigned ballot papers disputed were accepted in favour of opposite party candidate. Therefore, I have great apprehension that justice was not done to me and I strongly urge upon you to order for recounting in the above mentioned 115 MORAN CONs. LAC and also I have reason to believe that the with intention the presiding officer was mala fide. Thanking you in anticipation. Jibontara Ghatowar Received 13/5/2001 Sd/- Illegible INC Candidate 115 MORAN LAC" 13-5-2001 P.A. to DA and DEO Dibrugarh (Seal) Deputy Commissioner Dibrugarh District Dibrugarh. 6. The receipt of Exhibits 2 and 3 is admitted by the Returning Officer B. K. Pegu and he has deposed that as required under the Rules, the above application were disposed of vide order Exhibits A and B dated 14-5-2001. The grounds of rejection are mentioned in Exhibits A and B. There was no cross-examination of the Returning Officer as regards Exhibits A and B and the fact that the applications, Exts. 2 and 3, for re-counting were disposed of vide Exhibits A and B stands well established. The learned counsel for the respondent submits that there is suppression of material facts by the petitioner as in Para 32 of the Election petition the petitioner claimed that the application filed by her were not disposed. 7. 2 and 3, for re-counting were disposed of vide Exhibits A and B stands well established. The learned counsel for the respondent submits that there is suppression of material facts by the petitioner as in Para 32 of the Election petition the petitioner claimed that the application filed by her were not disposed. 7. The learned counsel for the petitioner has submitted that the Court trying the Election Petition has powers to direct re-counting of votes for which material facts and adequate grounds exists. Before entering into the merit of the submissions regarding recounting, it will be fruitful to recapitulate the true legal position in the matter. After consideration of earlier decisions the Apex Court in the case of Bhabhi v. Siv Govind, AIR 1975 SC 2117 held (Para 15):- "Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection of the ballot papers : (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed the allegation made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for recount; (4) That the Court must come to the conclusion that in order to grant the prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials. If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion undoubtedly be proper." 8. In the case of Satyanarayan Dudhani v. Uday Kumar Singh, 1993 (Supp) 2 SCC 82 : ( AIR 1993 SC 367 ), the Apex Court reiterated by observing (Para 10) :- "It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount cannot be ordered." 9. The decision in Bhabhi, ( AIR 1975 SC 2117 ) (supra) and Satyanarayan Dudhani, AIR 1993 SC 367 (supra) were approved and followed in the later decision in the case of M. R. Gopal Krishnan, 1995 (Supp) 2 SCC 101 : (1995 AIR SCW 156). 10. Now, coming to the facts of the present case, the allegations of the Election petitioner is that as many as 834 valid votes were improperly rejected on the ground of absence of signature of the Presiding Officer and distinguishing mark/seal on the ballot papers. 11. Rule 38 (1) of the Conduct of Election Rules 1961, provides. "38. 10. Now, coming to the facts of the present case, the allegations of the Election petitioner is that as many as 834 valid votes were improperly rejected on the ground of absence of signature of the Presiding Officer and distinguishing mark/seal on the ballot papers. 11. Rule 38 (1) of the Conduct of Election Rules 1961, provides. "38. Issue of ballot papers to electors.- (1) Every ballot paper before it is issued to an elector, on the counterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct, and every ballot paper, before it is issued, shall be signed in full on its back by the presiding Officer." Sub Clause (h) of Rule 56 (2) of the Rules reads as follows :- (h) if it does not bear (both the mark and the signature which it should have borne under the provisions of sub-Rule (1) of Rule 38 : Provided that where the returning officer is satisfied that any such defeat as is mentioned in Clause (g) or Clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect : Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked." 12. In this case, there is no dispute at the bar that the 834 Nos. of votes, which were rejected under provisions of Rule 56 (2) (h) do not bear the signature of the presiding officer as well as the distinguishing mark. The petitioner has examined as many as 11 witness including herself and none of them have claimed anywhere that there were signature of the Presiding Officer or distinguishing mark on the rejected ballot papers. The Assistant Returning Officer and the Returning Officer have categorically deposed that these ballot papers had no distinguishing mark and the signature of the Presiding Officers and as such these were rejected. The Assistant Returning Officer and the Returning Officer have categorically deposed that these ballot papers had no distinguishing mark and the signature of the Presiding Officers and as such these were rejected. PW 10 and PW 11 and DW 2 Pradip Das were the Assistant Returning Officers present in the Counting Hall at the time of counting and they have deposed that these ballot papers were rejected as they did not contain the signature and seal of the Presiding Officers. The Returning Officer as well as the two of the respondents have also deposed that before the start of the counting the matter was discussed between the candidates and their election agents and a consensus agreement was arrived at by all of them that the votes having no seal or signature are to be rejected as invalid straight- way. DW 2 Pradip Das has further submitted that the rejected votes were shown to the election agents of the candidates. 13. Sri A. M. Mazumdar, learned Sr. Advocate for the petitioner contends that there cannot be any estoppel against law and a legal plea cannot be rejected on the ground that there was a consensus against the law. The learned counsel for the respondent on the other hand have placed reliance on a decision of this Court in the case of Barkatulla v. Rabindranath Malakar, AIR 1980 Gauhati 35 where it held that re-counting and scrutiny of disputed votes on the basis of agreement between the parties can be done. While deciding the above case, this Court took into consideration a decision of the Supreme Court in the case of S. R. Singh v. R. H. Mishra, AIR 1977 SC 681 , the Apex Court held that the agreement entered into by the parties can be accepted provided it was not violative of any of the provisions of the Act. 14. Sri P. P. Rao, Sr. Advocate appearing for the respondent have submitted that the above agreement between the candidates to reject all the votes without signature of presiding officers and/or distinguishing marks was not violative of Rule 56(2)(h). 15. Hence, in the facts and circumstances of the case, the rejections of 834 No. of votes on the ground of absence of signature and distinguishing mark was in accordance with the Rules. 15. Hence, in the facts and circumstances of the case, the rejections of 834 No. of votes on the ground of absence of signature and distinguishing mark was in accordance with the Rules. The learned counsel for the petitioner has however placed reliance on the proviso 1 as quoted above, which provides that where the Returning Officer was satisfied that such defects have been caused by any mistake or any failure on the part of the Presiding Officer, the Ballot papers was not to be rejected. The learned counsel for the petitioner therefore submits that the duty was cast upon the Returning Officer to make an enquiry as regards the absence of signature and distinguishing mark and as the latter has not done any enquiry he has failed to discharge his duties. Admittedly, the Returning Officer did not cause any enquiry in the matter. The question of enquiry will arise only if there is any allegation, either by the petitioner or by someone else. Admittedly, there is no allegation to that effect. The petitioners Election agent and other witnesses were examined, but there is not a whisper even that the ballot papers did not bear the signature or seal due to mistake or failure on the part of the Presiding Officer or Polling Officer. On the contrary, evidence has been led to show that the polling passed off peacefully. Not to speak of the Returning Officer, even the petitioners Chief Election Agent, Sri Nagen Barthakur, has stated as below : "We, from the Congress Party did not make any investigation or enquiry as to how large numbers of votes were cast without bearing signature or seals of the Presiding Officer and why such votes were rejected." 16. Hence, in absence of any evidence that there was any mistake or failure on the part of the Presiding Officer or Polling Officer in the matter of absence of signature or distinguishing mark in the Ballot papers, proviso of sub-clause (h) of Clause 2 of Rule 56 was not applicable and there was no illegality or infirmity in the matter of rejection of 834 Nos. of votes on that count. 17. The next contention of the petitioner (Issue No. 3) is that, as many as 644 Nos. of votes on that count. 17. The next contention of the petitioner (Issue No. 3) is that, as many as 644 Nos. of votes cast in favour of the petitioner were misplaced by the Counting Officers in the compartment meant for respondent No. 1 and they were counted in favour of Respondent. Nathan Mili PW 3, has stated that as many as five bundles, each containing 50 ballot papers total 250 votes, cast in favour of the petitioner were wrongly kept in the box of the respondents. Likewise Rajib Tanti PW 6 have deposed about placing of the three bundles, total 150 votes cast in favour of the petitioner, in a like manner kept in the box of the respondent. PW 7 Shew Prasad has deposed about another 150 votes wrongly counted in favour of the respondent in the like manner. Ananda Gogoi PW 8 has made a general statement that at the time of counting of polling station No. 8 at table No. 8, he had observed that the Officer concerned are preparing bundles in such a manner that they were placing two ballot papers polled in favour of A.G.P., at the top and bottom of the bundles and in between them 48 ballots polled in favour of Congress (I) were placed in order to make the bundle look as that of A.G.P. The Witnesses have, however, not stated as to how such bundles were prepared. The above allegations, on the face of it, seems to be a serious affair and all the above witnesses have categorically deposed that they have made complaint to that effect, first, to the Election Officer and then to their candidates, i.e. the election petitioner PW 1 and the election agent PW 2, who were physically present at the counting hall during the entire duration of counting. PW 1 and PW 2 have also admitted that they were reported about the above anomalies. 18. The learned counsel for the respondents, on the other hand, submits that the above allegations is an afterthought and at the relevant time there were no such allegations or complaints. In this case, as stated above, two of the Assistant Returning Officers were examined by the petitioner as her witness and one Assistant Returning Officer was examined as DW 2. The learned counsel for the respondents, on the other hand, submits that the above allegations is an afterthought and at the relevant time there were no such allegations or complaints. In this case, as stated above, two of the Assistant Returning Officers were examined by the petitioner as her witness and one Assistant Returning Officer was examined as DW 2. On perusal of their evidence, it is seen that the petitioner has not pointed any accusing finger on them either in examination-in-chief or in cross examination as regards the above anomalies of transfer of bundles by the petitioner to that of the respondents. Exhibits 2 and 3 are the two applications filed by the petitioner for re-counting. Exhibit 2 is a cryptic application bereft of any details, whereas, in exhibit 3 some details of alleged anomalies are given. Exhibit 3 has been quoted above in verbatim. On perusal of the same, I find there is not a single line in support of the allegations of transfer of votes of the petitioner to that of the Respondent. 19. In Mr. Gopal Krishnan, (1995 AIR SCW 156) (supra) the Apex Court observed that the Rules provide adequate opportunity to the Candidate, to the Election Agent, and to the Counting Agent, to have a watch over the counting process before the results are declared and if there is any objection and such objection is improperly rejected, the Candidate or his Election Agent are well informed of the nature of the objection. In Satyanarayan Dudhani, ( AIR 1993 SC 367 ) (supra), it was held that when there is no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order re-counting. 20. Sri Mazumdar, has however placed reliance on a decision of the Apex Court in the case of Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796 :- "In Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796 , the Apex Court rejected the contention that High Court cannot entertain fresh or additional grounds, i.e. grounds other than taken before the Returning Officer. The Court observed as under :- "In the election, it is open to an election petitioner to place cogent evidence before the High Court........ Enquiry during scrutiny is summary in nature........... The Court observed as under :- "In the election, it is open to an election petitioner to place cogent evidence before the High Court........ Enquiry during scrutiny is summary in nature........... Therefore, it is open to a party to place fresh or additional material before the High Court to show that the Returning Officers order rejecting the nomination paper was improper. It should be borne in mind that the proceedings in election petition are not in the nature of appeal against the order of the Returning Officer. It is an original proceeding." 21. The learned counsel for the petitioner has also drawn the attention of this Court on a decision of the Honble Rajasthan High Court in the case of Gujant Singh v. Krishan Chander, AIR 2001 Rajasthan 211 wherein the learned single Judge relying on Birad Mal Singhvi (supra) held :- "Therefore in view of the above, it is crystal clear that proceedings before the Election Tribunal are original in nature and election petitioner can produce all cogent material and take additional grounds which have not been taken before the Returning Officer at the time of filing the application for recounting under Rule 63 of the Conduct of Election Rules, 1961. Section 64 of the Act, 1951 provides for a mode of counting of votes. Section 100 of the Act specifies the grounds on which the election of the returned candidate can be declared void. It includes that if the result of the election petition, in so far as the returned candidate is concerned has been materially affected by improper reception, refusal or rejection of any vote or reception of any vote which is void, or by any non-compliance with the provisions of the Constitution or of the Act, 1951, or any rule or order made under the Act, 1951. Thus, the Act, 1951 itself provides that election petition shall lie only on the aforesaid grounds. In case the counting has been done in flagrant violation of the provisions of the Act or the Rules but the election petitioner came to know only after declaration of the result and he could not file the application for recounting under Rule 63 of the Rules 1961, the question does not arise whether his election petition cannot be entertained for recounting. Take an example that "A" has lost the election by a margin of fifty votes. Take an example that "A" has lost the election by a margin of fifty votes. He did not apply for recounting of votes before the Returning Officer at all. After declaration of the result, he possessed the knowledge of material fact that his forty valid votes had been mixed up and placed in the bundles of the returned candidate by the Counting Assistant and the same had materially affected the result of the returned candidate, can his petition be not entertained for recounting merely on the ground that he did not file an application for recounting at all. Taking such a view is not permissible even by stretch of imagination. However, the Court has to exercise its power in circumspection and the election petitioner may be asked to furnish an explanation as why he did not raise the objection before the Returning Officer. The Court has also to be careful that the election petitioner shall not be permitted to play the mischief knowingly and abuse the process of the Court or the new grounds taken in the election petition should not be concocted/manufactured after the declaration of the result. (Vide Nathu Ram Mirdha v. Gordhan Soni, 1972 ELR 62). 22. In Birad Mal Singhvi the question was regarding acceptance or rejection of Nomination paper and in Gurjant Singh ( AIR 2001 Raj 211 ) (supra) the Honble Rajasthan High Court was proceeding on the ground that the alleged anomaly or materials came to the knowledge of the election petitioner subsequently, and as such he may be allowed to raise the plea in the election petition. Admittedly when the election petitioner had no knowledge about the matter at the time of filing his application under Rule 63 for re-counting before the Returning Officer, he cannot be barred to raise such plea subsequently in such petition. However, the facts of the present case are altogether different. The Counting Agents had the knowledge and information of alleged transfer of votes and they reported the matter to the petitioner and his Election Agent who were all along present at the place but they did not make any complaint in the matter. In the course of argument, Sri Mazumdar submitted that when the petitioner and his Agent approached the Assistant Returning Officers they asked the petitioner to approach the Returning Officer and as the Returning Officer was not available no such complaint could be filed. In the course of argument, Sri Mazumdar submitted that when the petitioner and his Agent approached the Assistant Returning Officers they asked the petitioner to approach the Returning Officer and as the Returning Officer was not available no such complaint could be filed. I find no basis for such submissions as in para 10 of the election petition, the petitioner has stated as below :- "That the counting process in respect of No. 115 Moran LAC started at about 8 a.m. on 13-5-2001 at the Counting Hall No. 1 of Dibrugarh Government Boyss Higher Secondary. The four Assistant Returning Officers of No. 115 Moran LAC namely Shri Prafulla Deori, ACS (Senior Block Development Officer, Borbaruah Development Block), Shri Pradip Das, ACS (Additional Deputy Commissioner, Dibrugarh), Shri S. R. Bardhan, ACS (Circle Officer, Moran) and Shri N. A. Ali, ACS (Sub-Deputy Collector, Dibrugarh) supervised the counting process, while the Returning Officer Shri Banikanta Pagu, ACS, who also happens to be the Deputy Commissioner of Dibrugarh District, kept on coming in the counting Hall intermittently." 23. The respondent Returning Officer has categorically deposed that the counting of the votes was conducted in nine rounds of counting. On completion of each round, statement in form No. 16 were prepared along with a certificate of satisfaction in the printed format as per direction of the Election Commissioner. Exhibit C1 to C9 are the 9 Nos. of Certificate of satisfaction and Exhibit C1 to C8 contain the signature of N. Borthakur PW 2 and Exhibit C9 is signed by the petitioner herself. The signature of P.W. 1 and P.W. 2 are proved and exhibited and these are not disputed. The petitioner and her witnesses have also stated about the preparation of such statements and signing of the same by the candidates or the Election Agents. In the above certificates the petitioner and her Election Agent have not made any allegation regarding the alleged anomaly of transfer of votes of the petitioner to that of the respondent. 24. From the evidence on record, it is seen that the Returning Officer, the Assistant Returning Officer and other officials were present in the Counting Hall throughout the process of counting and the Election Observer Mr. Shekharan, deputy by the Election Commission of India, visited the hall intermittently, but no allegation whatsoever, either in oral or in writing, as regards the above was made to any one of them. Shekharan, deputy by the Election Commission of India, visited the hall intermittently, but no allegation whatsoever, either in oral or in writing, as regards the above was made to any one of them. 25. In view of Exhibits C1 to C9, evidence on record, and in view of the absence of contemporaneous evidence or materials or any other cause and cogent evidence, it is held that there is no basis to hold that the 644 Nos. of votes cast in favour of the petitioner were transferred to the respondent No. 1. 26. In view of the aforesaid decisions and discussions it is held that the Election Petitioner has failed to make out a prima facie case for re-counting. None of the grounds raised by the Election Petitioner survive for consideration and no case for interfering with the Election result, in favour of the respondent No. 1 has been made out. 27. In the result, the Election Petition stands dismissed. There will be no order as to costs. Petition dismissed.