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2003 DIGILAW 1061 (PAT)

Janak Singh v. Ram Das Rai

2003-09-26

P.K.DEB

body2003
Judgment P.K.Deb, J. 1. This petition has been filed under Secs. 80, 80-A and 81 of the Representation of People Act, 1951 (hereinafter referred to as the Act) questioning the election of returned candidate, namely, Ram Das Rai, in the State Assembly Election of 38 Saraiya Assembly constituency which was held in the month of February, 2000. 2. The petitioner was one of the contesting candidates in the State Assembly General Election from 38 Saraiya Assembly Constituency which took place on 17-2-2000. The present election petition has been filed calling in question on various grounds having non-compliance of various provisions and rules of the Act and also non-compliance of the directions given by the Election Commission of India as contemplated under Art. 324 of the Constitution of India. But the main ground of challenge is miscounting of ballot papers and on that ground it has been submitted that respondent No. 1 was shown to have secured more votes on poll and had been illegally declared as a returned candidates. The difference of votes between the election petitioner and the returned candidate i.e. respondent No. 1 is only 265 votes. Relief has been claimed in this election petition for setting aside of the election of the returned candidate and also for a further declaration u/s. 101 of the Act to the effect that the petitioner be declared as returned candidate in place of respondent No. 1. 3. The announcement and publication of the election of 38 Saraiya Assembly Constituency was made by the Sub-Divisional Officer, Marharwah, by notifying the dates as follows:- - 1. Last date for filing nomination paper on 31-1-2000 2. Date of scrutiny on 1-2-2000 3. Last date for withdrawal of candidate on 3-2-2000. 4. Date of polling on 7-2-2000. There was in total 17 candidates remained in the fray after proper scrutiny of nomination papers and withdrawal of some of the candidates. The petitioner Janak Singh was the official candidate of Bharatiya Janta Party having lotus as his symbol. The returned candidate Ram Das Rai was an official candidate of Rastriya Janta Dal having his symbol as lantern. Five other candidates were from All India Political Parties and they were having their official symbols. Nine of the candidates were independents and they were given symbols of their choice, the details of which have been mentioned in para-8 of the election petition. Five other candidates were from All India Political Parties and they were having their official symbols. Nine of the candidates were independents and they were given symbols of their choice, the details of which have been mentioned in para-8 of the election petition. The actual polling was made on 17-2-2000 from 8 a.m. to 5 p.m. At para-10 of the election petition the number of vote received by each and every individual seventeen candidates have been mentioned. According to which, respondent No. 1 Ram Das Rai received 40,680 votes while the petitioner Janak Singh received 40,415 votes and almost all other candidates have received very meagre votes as a result of which their security deposits had been forfeited. Thus, the allegation against the returning officer is to the effect that he was not very fair and impartial and it is alleged that Ram Das Rai, respondent No. 1 being a Minister in the State Government at the relevant time, he adopted all illegal means to ensure the victory of the Rastriya Janta Dal candidate. It is alleged that S.D.O. Marharwah, had been appointed as a returning officer at the instance of respondent No. 1 to ensure victory and similarly, the returning officer was made to choose his own person as Assistant Returning Officer for the very purpose, as mentioned above. It is alleged further that three persons had been engaged as counting staff who were never being approved by the District Election Officer and they were all the Assistants of the Office of the S.D.O. There were allegations that before the election started the respondent No. 1 manipulated through the returning officer in deployment of military and para-military forces at different polling booths. It was also mentioned that there was no fair polling in respect of several booths and particularly in booth Nos. 105, 106, 107, 225 and 249 as the ballots in those booths did not have signature and seal of the Presiding Officer and the distinguishing marks of the booths. Regarding booth Nos. 175 and 176 it has been alleged that the first information report was filed by the Presiding Officer to the effect that respondent No. 1 had forcibly snatched away arms and ammunition of police personnel in order to commit rigging during polls. Regarding booth Nos. 175 and 176 it has been alleged that the first information report was filed by the Presiding Officer to the effect that respondent No. 1 had forcibly snatched away arms and ammunition of police personnel in order to commit rigging during polls. All illegality made in the electioneering process at the instance of respondent No. 1 was informed through fax to the Election Commission of India and also being reported to other appropriate authorities. In several booths and precisely speaking in 18 polling booths repolling was made on 24-2-2000. 4. The main grievance of the election petitioner is with respect to the miscounting, illegality and irregularity committed during the course of counting of ballot papers, inasmuch as votes of respondent No. 1 have been increased on false pretext of excess votes between votes polled and votes counted at the counting table. Similarly, votes of the election petitioner have been reduced on false pretext of less number of ballot papers found in the ballot boxes than what had been polled. In that respect chart has been given in para-25 of the election petition as Chart-A and Chart-B respectively. Then in para-26 of the election petition, the alleged irregularities and illegalities have been enumerated, regarding several booths, namely, booth Nos. 240,67,32,56 and 194 and it was stated specifically in what way such irregularities or illegalities have been committed in respect of those booths as mentioned above. Illegal counting has been alleged in respect of Tables Nos. 2, 3, 4, 7, 8, 9 and 12 in the 14th, 15th, 16th, 17th and 18th round of counting and according to the petitioner, illegally 700 votes were counted in favour of respondent No. 1 and the nature of irregularities were stated, such as there were making against two names of the candidates and 100 ballot papers were although totally blank have been counted in favour of the respondent. Then other ballot papers illegally rejected have been given in a chart at para-27 and in para-28 of the election petition, it has been shown that with similar irregularities the ballot papers in favour of the petitioner have been rejected and chart has been given so. Then it is given in details in para-29 of the election petition how 2379 invalid votes have been counted in favour of the respondent. Then it is given in details in para-29 of the election petition how 2379 invalid votes have been counted in favour of the respondent. Besides sub-para a to c of para-29 there is also Annexure-5 and Annexure-5/a to that effect. In para 30 it has been stated that the election petitioner filed petition on 26-2-2000 in course of counting with regard to illegalities with a prayer for recounting as required under Rule 63 of the Conduct of Election Rules but no recounting was held. Two copies of such petitions have been annexed as Annexure-6 and Annexure-6/a. It is also mentioned that the Election Commission stayed the declaration of the result of the votes being received and explanations were called for from the Returning Officer and on getting distorted reply and suppressing of material fact the Election Commission had given permission for declaring the result. 5. Before the result was declared the petitioner gave representation to the Returning Officer and observers about the illegalities and irregularities but all attempts from the side of the election petitioner proved futile and when the result of the election was declared on 27-2-2000, the election petitioner had, no other alternative but to file the present election petition after doing all the formalities. Prayer has been made to declare the election of respondent No. 1 to be void and on allowance of recounting of ballots the petitioner should be declared as elected. Besides respondent No. 1 all other candidates in the fray were also made respondents in the case. 6. The respondent No. 1 had filed written statement denying all the allegations made in the election petition and specific denial has been made in respect of averments made in the different paragraphs of the election petition. The personal allegations which had been made against respondent No. 1 about indulging in booth capturing and snatching of ballot etc. and also influencing the voters have been denied specifically and it has been stated that when material particulars had not been made as required u/s. 83(2) of the Act, the election petition is liable to be dismissed u/s. 87 of the Act read with Order VI, Rule 16 of the Code of Civil Procedure. According to the respondent No. 1, counting was totally fair, peaceful and no objections were raised at the time of counting by the election petitioner. According to the respondent No. 1, counting was totally fair, peaceful and no objections were raised at the time of counting by the election petitioner. Only at the last round of counting when the election petitioner could understand that he was loosing election then he started raising all absurdities which were rightly being not paid heed to. The Annexures filed alongwith the election petition have been termed by respondent No. 1 as false, manufactured, concocted and tablework. Regarding discrepancy of ballots with regard to Form No. 16(1) and 16(2), explanation has been given from the side of the respondent in his written statement, details of which will be considered as and when necessary during the course of adjudication of the election petition. 7. On the basis of the pleadings of the parties the following issues were framed by order dated 9-1-2001 :- -- (1) Whether the election petition, as filed, is maintainable in its present form? (2) Whether the election is liable to be rejected for non-compliance of Secs. 81, 82, 117 and sec. 83 of the Representation of People Act ? (3) Whether the irregularities and illegalities, as alleged in the election petition with its annexures make a case of recounting of ballots? (4) To what relief, if any, the election petition can be granted. For the respective cases of the parties various witnesses have been examined by both the parties and several documents have also been exhibited. 8. For and on behalf of the election petitioner 11 witnesses have been examined including the petitioner himself as P.W. 1. He has supported his case in details. He has elaborately stated about the defects being found during the course of counting but regarding the actual defects which could be noticed was not in the direct knowledge of the petitioner but he has been told so by his counting agent and then according to him he had made objection through fax message ext. 6 which has been objected to from the side of the respondents and also the Returning Officer through Annexure-8 as objected to from the side of the respondents. 6 which has been objected to from the side of the respondents and also the Returning Officer through Annexure-8 as objected to from the side of the respondents. In cross-examination he had to admit that information regarding defects in counting were reported to him by different counting agents and they had also supplied in support of such defects some chit of papers and he had prepared the election petition on the basis of those chit of papers and those were shown to the defect also. But those chit of papers had never been made Annexures to the election petition. On previous occasion also he had fought the Assembly election and lost. P.W. 2 Pravin Kumar Singh was the counting agent of the petitioner at table No. 1. According to him 7 votes had been received in the 13th round of counting by the petitioner Janak Singh but the same has been lessened by one vote in the central Table. He has been cross-examined at length. But his examination in chief could not be thrown out. PW 3 Ranjit Kumar Singh was also a counting agent of the petitioner at table No. 2. He has also stated that in booth No. 2 which was counted in his table wherein 701 total number of votes had been cast to Janak Singh received 541 votes but the same had been lessened in the central table while making declaration of roundwise result by 10 votes. In respect of booth No. 30 also his submission is that 229 out of old 690 votes had been received by Janak Singh but ultimately he was shown to have received 226 only votes. Similarly he has deposed about similar nature of defects of lessening of the votes of the election petitioner in respect of 12th, 17th, 18th rounds. He has given a pictorial view of the counting and very peculiarly he has mentioned that he remembered those matters vividly although the notes which he had prepared was not before him. Similar is the evidence of P.W. 4 Mukesh Kumar Singh who was the counting agent of an independent candidate Jalim Singh and he was in table No. 6. According to him in booth No. 20 Janak Singh had received 71 votes but in the central table he was shown to have received only 10 votes. Similar is the evidence of P.W. 4 Mukesh Kumar Singh who was the counting agent of an independent candidate Jalim Singh and he was in table No. 6. According to him in booth No. 20 Janak Singh had received 71 votes but in the central table he was shown to have received only 10 votes. Similarly in booth No. 34 also the actual votes received by Janak Singh have been lessened in the central table. He has given description of such lessening in respect of booth Nos. 48, 62, 160, 174, 188 and 201 and according to him he raised objection but the same was not paid heed to. This witness has been cross-examined at length and from such cross-examination it could be found that he was definitely tutored by somebody otherwise being the counting agent of different candidate how he could give a vivid description of the petitioners case when there was a counting agent of the petitioner himself. P.W. 5 Sanjeev Ranjan is similar counting agent of Jalim Singh in Table No. 7 and he has also given similar lessening of votes in respect of Janak Singh in his table. Parrot like evidence has been given by this witness. P.W. 6 Alok Ranjan is also the counting agent of Jalim Singh. He has also supported the case of the petitioner in respect of lessening his votes in the central table. P.W. 7 Sunil Sinha is also the counting agent and had deposed in the same line as that of other counting agents of Jalim Singh. P.W. 8 Upendra Singh was the counting agent of election petitioner at table No. 7. He gave evidence in respect of other allegation of the election petitioner to the effect that several ballots having no signature and seal of the Presiding Officer and distinguishing mark of the booth concerned had been illegally counted in favour of the respondent and he has also deposed regarding lessening of votes of the election petitioner in the central table than that of the actual counting in the counting table, P.W. 9 Badri Narayan Singh is a counting agent of respondent Jalim Singh an independent candidate at table No. 9. He has also given deposition like that of the other witnesses as already mentioned above. P. W. 10 Sailendra Kumar is a counting agent of election petitioner Janak Singh at table No. 4. He has also given deposition like that of the other witnesses as already mentioned above. P. W. 10 Sailendra Kumar is a counting agent of election petitioner Janak Singh at table No. 4. He has also given description as to how the votes of Janak Singh has been lessening in the central table at different rounds of counting. P.W. 11 Chandrika is the counting agent of Independent candidate Mr. Bikari Sah. He has also deposed as to how votes of Janak Singh has been lessened in the central table. 9. On close scrutiny of the evidence of these witnesses it transpires that all have given parrotlike evidence of the same type and nature and very peculiarly all of them said that they had deposed so vividly on the basis of their memory alone. Most of the counting agents are of different candidates but they were deposing in respect of lessening of the votes of the election petitioner and nothing they have stated in respect of their own candidates. 10. For and on behalf of the respondent No. 1, Ram Das Rai, in total 12 witnesses have been examined including the respondent himself as D.W. 10. The evidence of the defence witnesses are in denial of all the allegations made by the petitioner and also as deposed by his witnesses whose evidence have been narrated in the forgoing paragraphs. D.W. 1 Mahesh Kumar, who happened to be counting agent of respondent No. 1 and was placed at table No. 4. He has given evidence denying the allegations of the election petitioner in respect of his table but he could not give any detail or arithmetic device regarding denial of the evidence of witnesses of his counter part. D.W. 2 Nagendra Rai is also a counting agent of respondent No. 1 at table No. 11. He has also deposed in the same line as that of D.W. 1. According to him, Form 20 was filled up at the Central Table and whatever has been done by the counting Assistants and counting supervisor was in order and no objections were raised during the course of counting. D.W. 3 Rameshwar Sharma was the counting agent of respondent No. 1 at Table No. 3. He has given vivid description as to how the votes were being counted, in his table in different rounds of counting. D.W. 3 Rameshwar Sharma was the counting agent of respondent No. 1 at Table No. 3. He has given vivid description as to how the votes were being counted, in his table in different rounds of counting. He has given arithmetic description regarding difference of votes of Form No. 16(1) and regarding Form 16(2). It is said to the effect that ballots of votes which were found inside the boxes were being counted and while opening the boxes seals were found to be intact and no objections were raised at the time of counting when either lesser number or higher number of votes were found in the ballot boxes than that also said to have been found as written by the Presiding Officer in Form 16(1). This witness was cross-examined at length but he very well stood the cross-examination. Similarly, D.W. 4 was the counting agent of Ram Das Rai at table No. 2. His evidence is to some extent vague regarding the denial of the allegation of the petitioner and his witnesses and his evidence is like that of D.Ws. 1 and 2. But D.W. 5 Chandradeo Rai was the counting agent of Ram Das Rai at Table No. 12. He has given vivid description of arithmetic perception regarding ballots found and were being counted from various ballot boxes. His evidence conforms to that of D.W. 3 & D.W. 6 Sanjay Kumar Yadav was the counting agent of respondent No. 1 at table No. 5. His evidence is of denial although vague not by arithmetic perception and conforms to that of D.Ws. 1 and 2. D.W. 7 Jagat Nr. Rai was the counting agent of Ram Das Rai at table No. 7. His evidence is also denial which conforms to that of D.Ws. 1, 2, 4 and 6. D.W. 8 Bishwanath Yadav happens to be the election agent of respondent No. 1, Ram Das Rai. He has given specific denials of the allegations being made. He has given the descriptions as to how the ballots were found and counted and how check memos were being prepared and issued to the central table by the counting supervisors. He denied the allegations as made in the form of suggestions given from the side of the election petitioner. He stood cross-examination well. D.W. 9 Mundrjka Pd. Rai was the counting agent of Ram Das Rai at central table. He denied the allegations as made in the form of suggestions given from the side of the election petitioner. He stood cross-examination well. D.W. 9 Mundrjka Pd. Rai was the counting agent of Ram Das Rai at central table. The allegations of manoeuvring in the central table as made from the side of the election petitioner has been stoutly denied. D.W. 10 Ram Das Rai is the respondent himself. He also denied all the allegations specifically made by the election petitioner in the election petition. According to him, when the election petition was filed then he filed petition for certified copies of different documents and then it could be detected that some manipulations and interpolations were made in the check-memos and in that respect he had made a representation which has been marked as Ext. K in the case. When those certified copies were supplied on opening of the strong room it is the case that the election petitioner Janak Singh was present. He has also exhibited a written objection given by him regarding some irregularities in respect of counting of booth Nos. 206 and 210 and, according to him, such objection was heard in presence of other side by the Returning Officer and then disposed of. According to him, counting was not improper which requires inspection of the ballots by the Court. D.W. 10/a is the Returning Officer who had vividly described as to how he had conducted the counting and he has also disposed of all the objections raised from the side of the election petitioner and still then after the counting was over when the election petitioner was pressing for recounting again and again he consulted with the election observer and also with the Election Commission of India and then its result was published. He categorically stated that all objections raised having been considered by him and also rejection of those objections have been clearly mentioned with reasonings in the ordersheet maintained by him. This witness has also been cross-examined at length but nothing material could be found out in favour of the election petitioner. D.W. 11 Binod Pd. Singh happened to be the Assistant Returning Officer and he has also deposed in the same line as that of the Returning Officer. This witness has also been cross-examined at length but nothing material could be found out in favour of the election petitioner. D.W. 11 Binod Pd. Singh happened to be the Assistant Returning Officer and he has also deposed in the same line as that of the Returning Officer. This witness has been cross-examined at length and an attempt was made to show that he and Returning Officer had some relations with Ram Das Rai as he was minister at that time but those could not be established in any way whatsoever. 11. Practically, the evidence of the respondent side are denial form and it remains the bounden duty of the election petitioner to prove that due to irregularities and illegalities in the counting in different forms vitiated the result of the election and, for that reason all cards were placed from the side of the respondent before the Court, such, as, the Returning Officer, Assistant Returning Officer and official witnesses have been put in the dock from the side of the respondent giving opportunity to the election petitioner to cross-examine them and to show to the Court as to the veracity of the election but almost in every aspect the election petitioner has failed to bring anything in his favour from the witnesses examined for and on behalf of the respondent. 12. For and on behalf of the election petitioner several documents have been exhibited which may be enumerated as follows:- -Ext. 1 is a petition filed by the petitioner dated 26-2-2000 after the election result was declared addressed to the Chief Election Commissioner, New Delhi. Specific mentions of this petition is in respect of booth Nos. 105, 106, 107 and 225 with a vague allegation that there were irregularities in the signatures of Presiding Offices and tampering of the ballot papers but nothing stated specifically. Ext. 2 is the objection filed before the Returning Officerwith respect to Booth Nos. 105 and 106 and also 107. In respect of booth No. 105 and 106 it has been stated that the signature of the Presiding Officer were wrong and regarding booth No. 107 it has been stated that very peculiarly 99% of the votes have been polled in that booth. It was also mentioned that F.I.R. has been lodged before the police. There is nothing by the Returning Officer on that petition itself. Ext. It was also mentioned that F.I.R. has been lodged before the police. There is nothing by the Returning Officer on that petition itself. Ext. 3 happens to be another objection filed on 25-2-2000 to the effect that in the ballots of booth No. 106 the signatures of the Presiding Officer were found concocted. It appears that there were notings of the Returning Officer in that petition itself when he had verified the matter in presence of the observer and found not correct. Ext. 4 is another objection filed by Janak Singh before the Returning Officerwith a prayerfor recounting which is written by separate hand and signature of Janak Singh was there and it appears that it was filed after the result was published. Ext. 5 is another representation before the Chief Election Commission of India after counting was over, wherein it is stated he has lost election only by 252 votes and that the Returning Officer was partisan towards the respondent No. 1. Ram Das Rai as he was instrumental in putting the Returning Officer, B.D. Prasad as S.D.O. Marharwa for getting undue advantage. Some other objections were raised which are all vague in nature. Regarding booth Nos. 105, 106, 107 and 225 it has been stated that signatures of Presiding Officers were irregular and there was tampering of ballot papers and this has got the same version as that of Ext. 1. Ext. 6 is the original of Annexure-8 as annexed with the election petition. This is also a representation before the Election Commission of India dated 27-2-2000 i.e. long after the result was being published having some sort of allegations as that of Ext. 1 and Ext. 5. Ext. 7 is also of the same nature as that of Ext. 6 which was in the nature and form of Ext. 1 and Ext. 5. According to the respondent, those representations before the Election Commission of India were only an afterthought for the purpose of creating grounds for filing the election petition and those were only table works and no importance could be given to it. Regarding objections filed before the Returning Officer those were taken note of and have been disposed of by the Returning Officer and his orders are already there in the ordersheet as deposed by him. 13 On behalf of respondent two documents have been exhibited. Ext. Regarding objections filed before the Returning Officer those were taken note of and have been disposed of by the Returning Officer and his orders are already there in the ordersheet as deposed by him. 13 On behalf of respondent two documents have been exhibited. Ext. A is an allegation made by respondent No. 1 before the Election Commission of India bringing allegations of forgery in Election documents by Janak Singh giving details as to how interpolations and manipulations were made in the election document. Ext. B has been marked at the instance of the election petitioner while cross-examining the respondent. Some objections were raised by the respondent regarding the ballots of booth No. 206 and it has been admitted also that the said objections have been looked into by the Returning Officer and disposed of by writing orders in the ordersheet itself. Besides that four documents have been marked for identification as X, Y, Z and W. Document X relates to the direction given by the Election Commission of India dated 1-10-1999 while marked Y document is a check memo asperForm-16(2) in relation to booth No. 174 which was counted in table No. 13 and which shows that Ram Das Rai has got 204 votes while Janak Singh got 72 votes but then 1 was being prefixed of 72 but that was by different pen and if 172 is said to have received by Janak Singh then the total number of votes differ by 100 votes and in all those matters there is allegation from the respondents side that manipulations and interpolations have been made from the side of the election petitioner in the check memos. Similar is the case in respect of document marked Z wherein Janak Singh had received 23 votes but 1 has been pre-fixed showing receipt of votes 123. Document Z refers to booth No. 32 which was counted at table No. 4. Here also it is the case of the respondent that this 1 has been pre-fixed by manipulation and if the total is being calculated then the same goes to show a difference to 100 votes. In the document marked W which was the check-memo of booth No, 56 and was counted in table No. 14. Here also it is the case of the respondent that this 1 has been pre-fixed by manipulation and if the total is being calculated then the same goes to show a difference to 100 votes. In the document marked W which was the check-memo of booth No, 56 and was counted in table No. 14. There also 60 votes have been received by Janak Singh but 1 has been prefixed by different ink and if the total is counted then it appears that 100 votes difference are there. In respect of these documents Y, Z, and W the same submission is there from the side of the respondent that manipulations have been done by the election petitioner. The final resultsheet and also the resultsheets published roundwise also have been shown from the side of the respondent showing that those except the final resultsheet contained the signatures either of the candidates or their election agents or the counting agents. 14. These are the evidence both oral and documentary as adduced from the side of the parties which are required to be considered for the purpose of coming to a just decision in respect of the issues framed in the case. Findings and reasons thereof: 15. Issue Nos. 1 and 2:- -Both the issues are taken put together as they are inter-related. This Election petitioner has been filed with various allegations as have already been stated in the foregoing paragraphs. There were also allegations regarding some sort of corrupt practice against respondent No. 1, the returned candidate. But very fairly it has been conceded by Mr. S.N.P. Sharma, learned Senior counsel appearing for and on behalf of the Election petitioner that he does not want to press on those allegations of corrupt practices against the respondent No. 1 such as he had influenced the Presiding Officer or the Returning Officer of the impugned election on the basis of he being a Cabinet Minister at the relevant time of holding of the election and it has been submitted by Mr. Sharma that his election petition shall be confined to wholly inspection of ballots and then declaration of the Election petitioner as elected candidate after such inspection and as such inspection has been urged on the ground of irregularities/illegalities in the course of counting of ballots. Sharma that his election petition shall be confined to wholly inspection of ballots and then declaration of the Election petitioner as elected candidate after such inspection and as such inspection has been urged on the ground of irregularities/illegalities in the course of counting of ballots. In that way, wherein the election is being challenged on the grounds of irregularities/illegalities in counting, then the construction of the Election petition shall be governed by sec. 83(1)(A) of the R.P. Act and not under Sec. 83(1)(B) of the Act and as such it is to be considered only as to whether the Election petition contains the material facts for which adjudication is to be done. 16 It has been complained from the side of the contesting respondents that the provisions of Secs. 81, 82, 117 and 83 of the Act had not been complied with and, as such, the Election petition is liable to be rejected at the very outself as contemplated u/s. 87 of the Act readwith Order VI Rule XVI of the C.P.C. sec. 81 of the Act requires that the Election petition calling in question of the election should be pressed by one or more than one ground specified under Secs. 100, 101 of the Act by any candidate before the designated Court as being provided u/s. 80(A) of the Act. The first order of the ordersheet dated 10-4-2000, it is relevant for this purpose. At the relevant time Hon ble R.N. Sahay, J. (since retired) who was assigned Judge for the purpose of adjudication of the Election petitions. The Election petitioner himself filed the petition who was identified by his counsel. Alongwith the Election petition Chalan showing deposit of Rs. 2000.00 as Security Money has also been filed. Necessary copies with true copies of the Election petition had been submitted for service of notices on the respondents and in that way the provision of sec. 81 of the Act has been properly complied with. 17. sec. 82 of the Act provides as to who shall be necessary party in the Election Petition. sec. 82(A) of the Act provides that besides declaration of the Returned Candidate as void if there is further claim of declaration that the Election Petitioner should also be declared as Returned Candidate, then it requires that all the candidates in the fray should be made parties to the election petition. sec. 82(A) of the Act provides that besides declaration of the Returned Candidate as void if there is further claim of declaration that the Election Petitioner should also be declared as Returned Candidate, then it requires that all the candidates in the fray should be made parties to the election petition. Here, in the present election petition besides respondent No. 1 who is the Returned Candidate all other 15 candidates in the fray had been made parties. In that way, sec. 82(A) of the Act has been properly complied with. 18. sec. 117 of the Act requires deposit of Security cost. Here, I have already mentioned in the foregoing paragraphs that the chalan regarding security cost had already been deposited before the filing of the election petition itself and such chalan is on the record and as such sec. 117 of the Act has also been complied with. 19. Regarding sec. 83 6f the Act I have already mentioned that when the election petition is not pressed oh the ground of corrupt practices then only material facts are to be supplied with regard to the allegations made for the purpose of declaration of Election to be void. To substantiate the allegations of irregularities/ illegalities in course of counting of ballots, paragraphs 25 to 29 have been enumerated in the election petition itself and in support of those allegations Charts and Annexures have also been furnished in the election petition itself as substantial prima facie documents in support of such allegation. The allegations are (A) 300 votes of the Election petitioner was reduced on the false pretext of less number of ballot papers found from the Ballot Boxes (B) 138 votes of the respondent No. 1 was increased on the false pretext of excess number of ballot papers found from the Ballot Boxes (C) 326 votes of the Election petitioner was reduced while recording in Form-20. (D) About 700 votes of the petitioner were mixed with the votes of the respondents and were counted in his favour. (E) 50 Ballot papers on which Stamps were put in favour of two candidates were counted in favour of respondent No. 1 on the counting tables. (D) About 700 votes of the petitioner were mixed with the votes of the respondents and were counted in his favour. (E) 50 Ballot papers on which Stamps were put in favour of two candidates were counted in favour of respondent No. 1 on the counting tables. (F) Approximately, 100 Ballot papers which were not bearing the Stamp in favour of any of the candidates and were blank even were wrongly counted in favour of respondent No. 1 (G) 171 Ballot papers of the petitioner were illegally rejected in different rounds. (H) Similar 277 Ballot papers were counted in favour of respondent No. 1 in different rounds of counting at different tables and 2379 invalid votes were counted in favour of respondent No. 1. In support of such allegations Booth Numbers, Table Numbers and the rounds of counting had been given in the Election petition itself in the form of Chart and Annexures. 20. In support of the allegations as enumerated in A, B, C, D and E in the Election petition it has been enlarged to the effect that the Ballot papers of Booth Nos. 105, 106, 107, 225 and 249 did not bear the signature of the Presiding Officers and distinguishing marks of the respective Booths, even then they were counted illegally in favour of respondent No. 1. An objection was raised to the effect that in the application dated 26-2-2000 marked as Ext. 1 the petitioner had alleged that there were illegalities i the signature of the Presiding Officers on the ballot papers and tampering of the ballots. Yet, those have been enlarged in the election petition by stating more to the effect that they did not bear the signature of the Presiding Officer and the distinguishing marks of the respective Booths were absent. That was not their case in the allegations filed before the Election Commission of India in Ext. 1. That is a matter which is required to be considered at the time of considering the admissibility or otherwise of such allegations if not stated during the course of counting or soon before the result was published. But here when we are considering about the maintainability of the election petition we are not to consider about the evidence, admissibility of the same etc. etc. We are to see the allegations which have been brought whether have been enumerated with material facts or not. But here when we are considering about the maintainability of the election petition we are not to consider about the evidence, admissibility of the same etc. etc. We are to see the allegations which have been brought whether have been enumerated with material facts or not. I have already stated that the allegations have been made in different rounds of counting regarding the irregularities/illegalities. Substantial material facts have been given in the Election petition itself in the form of Charts and Annexures. How far these should be proved or not is a matter otherwise but for maintainability of the election petition it must be held that all the material facts have been stated in the election petition itself. It is not necessary to substantiate such allegation by evidence to be brought in the election petition itself. In that way, if the allegations based on material facts have been enumerated in the election petition, then provision of sec. 83(1)(A) of the Act is required to be held as being complied with which I do accordingly. 21. I have already stated that when some sort of allegations of corrupt practices have been started in the election petition but those allegations have been given go-bye by the Election Petitioner then the question of substantiating those allegations of corrupt practices by giving material particulars and in support of it affidavit thereof is not required. Hence, I hold that the Election Petition is maintainable in its present form and the relevant provision for the purpose of admissibility of the Election Petition had already been complied with and enumerated in the election petition itself and hence, both the issues are decided in the positive and in favour of the Election petitioner. It should be mentioned here that regarding maintainability a petition was filed when evidence was going on and it was ordered that it should be taken up after evidence is closed. 22. Issue No. 3:- -This is the vital issue which requires to be dealt with in length with reference to the legal position, evidence adduced in support of the allegations brought to come to a just decision in the case and the decision on this issue will decide the fate of the Election petition itself. 22. Issue No. 3:- -This is the vital issue which requires to be dealt with in length with reference to the legal position, evidence adduced in support of the allegations brought to come to a just decision in the case and the decision on this issue will decide the fate of the Election petition itself. Before coming into the factual aspect of the different allegations brought and proof thereof the principle and law requires to be kept in mind while scrutinising the evidence and materials on record. For deciding as to the factum of inspection of ballots the principle is practically settled by different rules framed under the Act as Conduct of Election Rules, 1961 and also the different findings of the Apex Court at different cases. 23 At the first instance it is to be stated that the Conduct of Election Rules, Part-V, Rules 52 to 56 deal with the counting process and how it is to be regulated. Those deal with how the counting agents are to be placed in the places fixed for counting, how many counting agents are allowable, how they should react etc. etc. If those rules are read together then it may appear that practically an attempt was there to make the counting full proof and if those provisions are implemented in its proper perspective then there remains no scope for holding that there were irregularities and illegalities in the course of counting. But still then it was enumerated under Rule 63 of the Act that if during the course of counting it is found that the ballots are not being properly scrutinised and counted then objections can be raised from the side of the candidates, their Election Agent or counting Agents. In that way, if objections are not being raised during the course of counting then there is every scope or possibility to hold that the Election petition and the allegations made therein are concocted, manufactured and table work for the purpose of Election petition itself. 24. It was held by the Apex Court as reported in AIR 1964 SC 1249 and also on subsequent ruling upto AIR 2003 SC 304 in almost equivocal terms that order of inspection of Ballot papers cannot be granted as a matter of course to support vague pleas made in the petition hot supported by the material facts or to fish out such vague pleas. In AIR 1964 SC 1249 , it has been held after considering the different rules of the Conduct of Election Rules right from Rules 52 to 63(1) and 63(2) as to the necessary requirement for the purpose of making of electron Judge convinced regarding the prima facie case being established otherwise the Election petition should be rejected for the purpose of inspection of ballots. The scheme and object of the provisions contained in Part V of Election Rules was very vividly considered and expressed by their Lordships of Apex Court in the above reported in AIR 1964 SC 1249 . The same has been reiterated regarding prayer for recounting of votes by a Bench of three Horible Judges of the Apex Court reported in AIR 1966 SC 733 (Jagit Singh V/s. Kartar Singh). Therein also the same view has been expressed that the rules are almost full-proof regarding counting and still then if there is any deviation, there is only scope to raise objection during the course of counting under Rule 63 of the Conduct of Election Rules, 1961. In the case of Baldeo Singh V/s. Teja Singh, reported in 1975 (4) SCC 406 , it has been expressed by the Apex Court that itself ingeneous averments did not promote prospects of judicial recounting and will be dismissed as device to apply with the requirements in the some ruling or other. 25. The grounds should be of such nature which must appeal to the Judge concerned or the Tribunal for passing an order of recounting and if the same is not appealing to the Judge concerned he may reject it for the purpose of inspection of ballots. Some grounds have been enumerated by the Apex Court wherein if fulfilled there can be order of inspection of ballots and recounting in the case of Bhabhi V/s. Sheo Govind and Ors., as reported in (1976) 1 SCC 687 . Some grounds have been enumerated by the Apex Court wherein if fulfilled there can be order of inspection of ballots and recounting in the case of Bhabhi V/s. Sheo Govind and Ors., as reported in (1976) 1 SCC 687 . The grounds and conditions held are: (i) that it is important to maintain the secrecy of the ballot which is sacroscant and should not be allowed to be violated on frivolous, vague and indefinite allegations; (ii) that before inspection is allowed the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (iii) that the Court must be prima facie satisfied on the materials produced before the Court regarding truth of the allegations made for re-count; (iv) that the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (v) 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; (vi) that on the special facts of a given case sample inspection may be the prima facie satisfaction of the Court regarding the truth of the allegations made for recount, and not for the purpose of fishing out the materials. In that judgment it has been held that even if a person is being duly elected by a narrow margin of votes there is no presumption that there have been irregularities/illegalities in the election. The fact of irregularities and illegalities must be proved prima facie to convince the Court or the Tribunal that it is a fit case where inspection of ballots and the recount should be granted. Mr. Sharma, learned senior counsel for the Election petitioner by referring to the case of Raj Narain V/s. Indira Nehru Gandhi and Anr., reported in (1972) 3 SCC 850 , submitted that even if the secrecy of ballots be sacroscant then also for maintaining, justice such secrecy must be broken down if the occasions/allegations arise so. 26. Keeping these principles mentioned above in mind, we are now to consider the allegations and proof thereof made in the election petition. 26. Keeping these principles mentioned above in mind, we are now to consider the allegations and proof thereof made in the election petition. During the course of counting an application before the Election Commission of India was filed which is Annexure-5 and marked Ext. 2 in the case wherein it has been stated that there is different in signature of the Presiding Officer on the Ballot papers of Booth Nos. 105 and 106 and in respect of Booth No. 107 it is said that Rastriya Janta Dal candidate has got 99% of the votes polled. In respect of another two Booths also there was another petition which is Annexure-5/A, although, the same could not be proved in original wherein also there is allegation that there were irregularities in the signature of the Presiding Officers of Booth Nos. 225 and 249. After the counting was over and when the petitioner lost by a margin of 265 votes then he filed another application for recounting before the Chief Election Commissioner, New Delhi which has been marked as Ext. 1 (Annexure-6 of the Election petition) wherein grounds have been stated to the effect that he has lost the election by a margin of 252 votes whereas the numbers of rejected votes is 2002 and several votes have been wrongly declared invalid and the next ground was that there were irregularities in the signatures of the Presiding Officers of Booth Nos. 105, 106, 107 and 225. But now in the evidence the position has been developed to the extent that a huge number of Ballot papers of Booth Nos. 105, 106, 107 and 225 did not even bear the signatures of the Presiding Officers and there were no distinguishing marks of the Booths itself which was not the case when they filed the petition before the Returning Officer or the Election Commission of India. But the developing stories have been found in the Election petition and then in support of the election petition vague statements have been made to that effect in the Court. Now, the position comes in whether in such allegations made in the election petition and being supported by the oral evidence during the course of trial can be considered by the Tribunal or the Court where such grounds were not there in the petitions filed under the Rules 63 of the Conduct of Election Rules, 1961. Now, the position comes in whether in such allegations made in the election petition and being supported by the oral evidence during the course of trial can be considered by the Tribunal or the Court where such grounds were not there in the petitions filed under the Rules 63 of the Conduct of Election Rules, 1961. It was held in the case of Smt. Ram Rati V/s. Saroj Devi and Ors., reported in AIR 1997 SC 3072 by the Apex Court to the effect that an application in writing to the Returning Officer is an essential condition precedent for recounting of votes. Order directing recounting without there being prior application is improper. That case was in respect of M.P. Panchayat Raj Adhiniyam under Rule 76 which is equivalent to Rule 63 of the Conduct of Election Rules, 1961 under the Act. This judgment of the Apex Court has, although, been over-ruled by a judgment of the Apex Court as reported in (2003) 1 SCC 108 (Sochanlal V/s. Babu Gandhi and Ors.), wherein it was held that after declaration of result of election, no application for recount can be entertained and only remedy available to the aggrieved party is to file an election petition raising the plea regarding recounting which the Tribunal or the Court is bound to consider and where a case is made out, it may direct recount depending upon evidence led by the parties. But if we read both the rulings side by side then it can be found that the conclusion arrived at by the Benches of the Apex Court were different on footings. The application for recounting is definitely not maintainable after the result is over and in between the result being published then definitely there is no scope for filing of any petition under Rule 63 of the Act. In the case reported in Sohanlals (supra), anomalies arose after the counting was over and while making the resultsheet and in that way such observations have been made and conclusion being arrived at. But in Smt. Ram Ratis case, supra, the position was totally different. Therein anomalies were alleged during the course of counting but no objections were filed with those allegations before the Returning Officer and hence the conclusions have been arrived at in that case. But in Smt. Ram Ratis case, supra, the position was totally different. Therein anomalies were alleged during the course of counting but no objections were filed with those allegations before the Returning Officer and hence the conclusions have been arrived at in that case. I do not find that there was any scope of over-ruling of judgment of 1997 case in the judgment passed in 2003 case. When anomalies arose after the counting was over and in preparing the resultsheet then definitely the same grounds of recounting can be taken only in the election petition as there was no scope of filing any complaint under Rules 63. But in the present case, in my view, 1997 SC Judgment is properly applicable. Herein, applications had been filed not only during the course of counting but also after the counting was overgiving some details. But those details have been totally changed or covered up with further more allegations in the election petition. 27. It appears on perusal of Exts. 1 and 2 the grounds of the election petition as enumerated from Paragraphs 25 to 29 that the election petitioner is trying to improve his case at every stage for the purpose of getting an order of recounting. At the first stage his case was that there was difference in the signature of the Presiding Officer in the ballots. But now the case is that the ballots did not bear the signature of the Presiding Officer at all and there is further more contradictory ground that there was no distinguishing marks of the Booths in the ballots. When there is an attempt of improving his case stage by stage then veracity of the election petition becomes doubtful and in that way those grounds as have been stated do not convince me that there were really irregularities in those counting for which this Court can allow the petition for inspection of ballots and also for recounting of ballots. Moreover, there is some technical defect regarding the evidence adduced by the election petitioner and Ext. 1. According to him, he filed petition for recounting before the Returning Officer but Ext. 1 reveals that it is addressed to the Chief Election Commission. Moreover, there is some technical defect regarding the evidence adduced by the election petitioner and Ext. 1. According to him, he filed petition for recounting before the Returning Officer but Ext. 1 reveals that it is addressed to the Chief Election Commission. In that view of the matter, when no petition for recounting was there before the Returning Officer then the grounds stated in the election petition is definitely hit by Sub-rule II of Rule 63 of the Conduct of Election Rules. Moreover, when there was no plea taken by the Election petitioner either in the Election petition or while evidence before this Court that he had certain difficulties which prevented him from filing a petition before the Returning Officer or the Assistant Returning Officer when the irregularities were detected in counting. In that way, the submission of Mr. Kumarmangalam that the whole allegations are concocted and a table work for the purpose of making grounds for Election petition gets much force. 28. Regarding the allegations of missing ballots and double marking as brought in the Election petition no evidence has been arrived at in support of such allegations nor any document has been filed. So, it must be held on this count of illegality, the Election petitioner has given up his allegations for the purpose of recounting. 29. There are further allegations regarding difference of ballots in respect of booth Nos. 32, 56 and 194. While considering the documents and Exhibits marked for identification of Form 20 it could be found very well that interpolations were there on the face of it. In that way it cannot be said that on those grounds there is any scope of giving any relief to the election petitioner when there is direct allegation against him that he alongwith his persons had made interpolations. The interpolations were clear when if totalling is made. It appears that such interpolated amount of ballots becomes more than the ballots found in the booth, but in respect of booth No. 67 and 240 it appears that there are difference in Form No. 20 regarding two numbers of votes and 22 numbers of votes respectively but in both those booths even if taken to be true that there is some difference on the face of the records but those are only arithmetic error but for such arithmetic error there is no scope to grant the order of recounting. Moreover if these arithmetic errors are taken to be true then when the petitioner has lost by 265 votes then by difference of these 26 votes he cannot get any scope of recounting or for declaration as claimed to be a returned candidate. Regarding other allegation there is no evidence adduced. Now the roundwise resultsheets were being prepared by the Assistant Returning Officer in Form No. 20 and those Form No. 20 bears the signature of the election petitioner or his counting agent or his election agent certifying the correctness and the certificate with the correctness of counting. The. allegation with respect to the irregularity or, illegality in those rounds cannot be entertained in view of the recent decision of the Apex Court as reported in 1999(9) SCC page 420, wherein it was held that when signatures have been given by the petitioner or his election agent or counting agent in the resultsheet roundwise prepared under form No. 20 as they to do so under the direction of the Election Commission of India and also on the amendment of the rules there remains no scope for a grievance that those results were incorrectly recorded when certificate by them is there on the face of it and when giving of such certificate has not been declined by any cogent reasons. In the evidence the election petitioner in examination-in-chief has stated that his signature was taken in the roundwise resultsheets by force. But in cross examination he has to admit that he had never lodged any protest or complaint in this regard before any Officer which definitely suggest that this plea is only an afterthought one and not being contained in the election petition itself so such plea cannot be entertained in any way whatsoever. 30. But in cross examination he has to admit that he had never lodged any protest or complaint in this regard before any Officer which definitely suggest that this plea is only an afterthought one and not being contained in the election petition itself so such plea cannot be entertained in any way whatsoever. 30. There is another allegation to the effect that in some of the booths either increased number of ballots were found those being shown to have been under form No. 16(1) and in some boothless number of ballots were found than what has been found in form No. 16(1) and as such it has been stated that those are the irregularities in the counting as if those increased number of votes are being counted in favour of the respondent No. 1 as less number of ballots being deviated from the number of votes being received by the election petitioner then recounting is necessary for finding out the proper result. I do not find much force in this respect. There may be an error by the Presiding Officer in writing, the number of votes being polled in form No. 16(1) but when the ballots were being found in the box of that booth in sealed cover having less or increased number of votes when there is no allegation to the effect that during the course of counting either the counting agents or the counting supervisors have taken away or have added some more ballots during the course of counting then the same can be construed to be an arithmetic error made on behalf of the Presiding Officer. It is no where alleged that total number of ballots found in the box were not being counted rather the ballots whichever is found had been counted, in favour of the parties who had received votes so. That there can be an arithmetic error was a foreseeing matter of the authorities who made the rules and had prepared the proforma of forms. In Form 16(2) there is a column. "Discrepancy in the number of ballots if any", which suggests that there can be error on the part of the Presiding Officer in calculating the votes because i.e. being done from the voter list being marked at the time of giving votes and also the counter foils of the ballots. In Form 16(2) there is a column. "Discrepancy in the number of ballots if any", which suggests that there can be error on the part of the Presiding Officer in calculating the votes because i.e. being done from the voter list being marked at the time of giving votes and also the counter foils of the ballots. If there is no allegation of the ballots being increased or decreased by the counting agents or the counting supervisors, there is no scope only because increased number of ballots or less number of ballots were found in sealed booths to hold that there was discrepancy which requires recounting. When it has been specifically asked the witnesses have replied that when the ballots of different booths were being opened in the counting table from the boxes seal and signature were found to be intact. In that way the error apparent on the records may be construed to be an arithmetic error being committed by the Presiding Officer in filling up of form No. 16(1). I do not find that on this ground there is any scope of recounting. 31. From the evidence of election petitioner himself it is found that he has stated something more which was not in his election petition that was submitted on oath by swearing affidavit. Then there was a petition for the purpose of drawing of a contempt against the petitioner or for proceeding against him for swearing a false affidavit. Objections have been raised on such petition from the side of the election petitioner. It can be very well understood for getting a desired goal a man will try to repair his case with some modifications or variations and I feel that this Court should not be very touchy to give too much importance in this matter regarding swearing of false affidavits unless it could be shown that something has been stated in the evidence which is having a mountain - high deviation from the statement in the election petition. In that way I am not going to take any action on that petition but it is true that the election petitioner definitely had given some deviated version to repair his case in his statement before the Court. Mr. In that way I am not going to take any action on that petition but it is true that the election petitioner definitely had given some deviated version to repair his case in his statement before the Court. Mr. S.N.P. Sharma learned counsel appearing on behalf of the election petitioner has relied in paragraphs 14 and 15 of the judgment of the Apex Court in 1989 SC 2023 (N.E. Horo V/s. Leander Tiru). The facts and circumstances of that judgment is totally different from the present one. Herein there is evidence on the allegations being made and such allegation could not be proved and in that case there is no scope of passing any order of recounting. He has further relied on 1985 SC 150 (Bhog Mal V/s. Porbhu Ram) but the facts and circumstances of that case are totally different from the present case which cannot have attracted any principle to be applied in the present case. On consideration of all the facts and circumstances as enumerated above I am of the view that the election petitioner has failed to make out a prima facie case for the purpose of inspection of ballots and for recounting. No case has also been made out by the election petitioner on the materials on record by which it could be found that the election petitioner must have received much more votes than that of respondent No. 1. Thus, present issue is decided in negative and against the election petitioner. 32. Issue No. 4 In view of the decision arrived at in Issue No. 3 no relief can be granted in favour of the election petitioner rather he has totally failed to make out a case either for recounting or for a declaration in the case. ORDER In that way it is ordered that the present election petition is dismissed with a cost of Rs. 1000.00 .