( 1 ) THE petitioner who filed the Election Petition under Sections 80, 80 (A), 81, 82, 84, 100 (i) (d), (iii) and (iv), and 101 (A) of the Representation of the People Act, 1951 seeks declaration that the election of the first respondent to the Andhra Pradesh Legislative Assembly from 158-Jammalamadugu Assembly Constituency is illegal, null and void, and for costs. ( 2 ) THE case of the petitioner in brief is thus: - Elections to Jammalamadugu Assembly Constituency along with Cuddapah Parliamentary Constituency were held on 05. 09. 1999. Jammalamadugu Assembly Constituency is one of the segments in the Cuddapah Parliamentary Constituency. The petitioner contested on behalf of the, India National Congress, hand symbol, while the first respondent contested on behalf of the Telugu Desam Party (TDP) with bicycle symbol; respondents 2, 3 and 4 contested on behalf of the Janata Dal (secular), NTR-TDP and Anna-TDP respectively and respondents 5 to 10 contested as independent candidates with various symbols in the said elections. ( 3 ) COUNTING of votes was taken up on 06. 10. 1999 in two halls of the Government Women Polytechnic Building, Cuddapah. The table of the Returning Officer (R. O) was placed at hall NO. 1. The Revenue Divisional Officer, Jammalamadugu, was the R. O. The Mandal Revenue Officer, Pedamudiam, by name, Mr. Narasimhalu, was the Assistant Returning Officer (A. R. O), in-charge of hall No. 2. Mr. Lakshmaiah, The Mandal Revenue Officer (M. R. O.) of Jammalamadugu, was in-charge of all the arrangements in both the halls. The M. R. Os. of Kondapuram, Pedamudiam and Mylavaram, assisted the R. O. in hall No. 1. A barricade was erected with iron mesh covering the counting tables all around. Twelve tables were provided in each hall. Out of them tables 1 to 6 were earmarked for Jammalamadugu Assembly Constituency and table Nos. 7 to 12 for parliamentary Constituency for the purpose of counting. A big wooden tray was placed on each counting table which occupied the area on the table. Three counting assistants with one counting supervisor were placed at each counting table. ( 4 ) THE counting agents of the candidates were made to sit on the stools provided to them on the other side of the iron mesh. A big wooden tray was placed on each counting table which occupied the area on the table. Three counting assistants with one counting supervisor were placed at each counting table. ( 4 ) THE counting agents of the candidates were made to sit on the stools provided to them on the other side of the iron mesh. In view of the height of the counting tables and the size of the wooden trays placed on them, the counting agents could not see sorting out and counting of votes and voting marks on the ballot papers while sitting on the stools. They were not allowed to stand and watch. The counting staff also could not sort out the votes candidate wise by sitting in the chairs. Therefore, they had had to stand to sort out the votes candidate wise and bundle them. They used to place ballots on their thighs, as there was no place left out on the counting tables. Hence the counting agents had to totally rely on the figures furnished by the counting staff about the votes secured by each candidate. ( 5 ) THE R. O. Mr. Butcha Reddy was as posted Revenue Divisional Officer, Jammalamadugu, in the year 1998 at the instance of the first respondent who was the local MLA by then. The said Butcha Reddy performed the marriage of his daughter at Jammalarnadugu which was arranged by the first respondent with one of his relations. Mr. Lakshmaiah, M. R. O. , Jammalamadugu, was working for the last four years with the blessings of the first respondent and he was strong supporter and sympathizer of TDP M. R. Os. of Pedamudiam, Kondapuram and Mylavaram were also obliged to the first respondent. The C. I. of Police Kondapuram Mr. A. Venkateswara Reddy was working in that place for the last five years with the blessings of the first respondent. When he was transferred in the month of May, 1999 and posted at Badvel, the orders were kept in abeyance at the instance of the first respondent. The first respondent was the former Minister and sitting MLA of the ruling party. His late uncle P. Siva Reddy was a Minister in the cabinet of late N. T. Rama Rao. After the assassination of Siva Reddy in a bomb blast the first Respondent entered into the politics and contested from Jammalarnadugu. Assembly Constituency in the year 1994. The first respondent was the former Minister and sitting MLA of the ruling party. His late uncle P. Siva Reddy was a Minister in the cabinet of late N. T. Rama Rao. After the assassination of Siva Reddy in a bomb blast the first Respondent entered into the politics and contested from Jammalarnadugu. Assembly Constituency in the year 1994. He too was an accused in a murder case in S. C. No. 473 of 1993 on the file of the Additional Sessions Judge, Mahaboobnagar. Since the family of the first respondent was in power since 1983,the first respondent has full control over the Officers working in Jammalamadugu Assembly Constituency and also in Cuddapah District. ( 6 ) IN the first phase of counting the entire ballot papers pertaining to the Parliament and Assembly Constituencies were mixed first and then segregated constituency wise. After such segregation, they were bundled up at the rate of 25 ballot papers per each bundle. The first phase of counting was completed by 04. 30 P. M. However, the result of the first phase of counting was neither the announced nor written on the black board. ( 7 ) IN the second of counting, 40 bundles were placed at each counting table. Counting assistiants sorted out the votes sitting in their chairs and keeping the ballots on their thighs and, therefore, the counting agents were not in position to notice the process of sorting out. After the completion of the counting of 40 ballot paper bundles placed at each counting table, again 40 bundles of ballot papers were sent without waiting for the completion of the round at the other tables. ( 8 ) IN hall No. 2 the first respondent, Mr. P. Giridhar Reddy and Smt. P. Lakshmidevamma son and wife of late P. Siva Reddy respectively along with their gunmen were freely moving and interfering with the counting process. Apart from them, Mr. V. Sivanagi Reddy and Mr. V. Narasaiah, the, candidates who contested from Cuddapah Parliamentary Constituency instead of confining to the counting tables of their Constituency, were freely moving in the counting hall No. 2 along with the first respondent and their gunmen. The gunmen of the petitioner were not even allowed to enter the counting hall. One Mr. Prabhakar Reddy, Mandal Development Officer, Pedamudiam, was present in the counting hall No. 2 although he was unconnected with the counting process. The gunmen of the petitioner were not even allowed to enter the counting hall. One Mr. Prabhakar Reddy, Mandal Development Officer, Pedamudiam, was present in the counting hall No. 2 although he was unconnected with the counting process. He is a close follower and supporter of the first respondent. Mr. A. Ventateswara Reddy, C. I. of Police, Kondapuram along with 3 or 4 constables was present at the time of counting of votes in hall No. 2 and he was threatening the counting agents of the petitioner with dire consequences whenever they were asking the counting assistants to show the ballots to verify the marks on them. The objection raised by the petitioner for the unauthorized presence of the above was not at all taken note of by the A. R. O. , in-charge of hall No. 2 or the R. O. ( 9 ) AT the end of second round of counting, by 07. 30 P. M the counting was stopped to facilitate the staff to take their food. At that time, there was a clear indication from the results declared that far that the TDP was going to form the Government. By then the petitioner was leading over the first respondent. During that break time, the first respondent and Mr. Prabhakar Reddy, M. D. 0, were discussing with the counting staff and making their own plans to manage the lead in favour of the first respondent by inflating the figures. ( 10 ) IN the third round of counting, the staff indulged in irregularities while sorting out the votes candidate-wise. The election agent of the petitioner Mr. Pulla Reddy who was moving in hall No. 2 having noticed the irregularities raised an objection and the staff at counting table No. 5 rectified the mistake by placing two ballot papers pertaining to the petitioner which were placed in the compartment of the first respondent. When this was reported to the A. R. 0, Mr. Narasimhulu, instead of taking action against the staff, he simply stated that he would look into the matter and issue necessary instructions. Staff working in the Revenue and Zilla Parishad Departments unauthorisedly entered into hall No. 2 and interfered with the counting process by counting the ballots and bundling them. When this was reported to the A. R. 0, Mr. Narasimhulu, instead of taking action against the staff, he simply stated that he would look into the matter and issue necessary instructions. Staff working in the Revenue and Zilla Parishad Departments unauthorisedly entered into hall No. 2 and interfered with the counting process by counting the ballots and bundling them. They used to bundle, less number of votes than the required 25 in respect of first respondent and more votes than the required 25 in respect of the petitioner. The A. R. O. did not take into consideration the objections raised by the counting agents of the petitioner Mr. T. Sham Reddy and Mr. S. Subba Reddy at tables 2 and 3 Mr. A. Venkateswara, Reddy, C. I, threatened the said two persons with dire consequences if they persist in raising such objections. At the end of third round by 10. 30 P. M. the petitioner was leading over the first respondent as per the information of his counting agents. ( 11 ) HAVING seen the attitude of the R. O. , A. R. O. and other staff, the petitioner gave a written representation to the R. O. to the effect that many of the counting staff were the sympathizers of TDP and they were also closely associated with the first respondent and that the staff pertaining to Revenue Department, Zilla Parishad and Mandal Parishads were unauthorisedly supervising the counting work with a view to do injustice to him, besides bringing out to his notice orally. The R. O. marked the said petition to the A. R. O. to verify as to whether Mr. Prabhakar Reddy was having any appointment order to sit at the A. R. O. s table. The A. R. O. did not take any action. The petitioner gave a representation at 11. 00 P. M. complaining against Mr. A. Venkateshwara Reddy, CI of Police. The R. O. made an endorsement on the same to the effect that the C. I. of police should be sent out from the counting hall. ( 12 ) BY midnight on 06. 10. 1999 it was clear that the TDP majority would get absolute majority and on account of the same, the entire counting staff was in favour of the first respondent and tried to help him wherever it was possible. Mr. ( 12 ) BY midnight on 06. 10. 1999 it was clear that the TDP majority would get absolute majority and on account of the same, the entire counting staff was in favour of the first respondent and tried to help him wherever it was possible. Mr. Prabhakar Reddy, M. D. O. Pedamudiam, was collecting the check memos from the counting supervisors and also deciding the doubtful ballot papers on his own without the intervention of the A. R. O. , Mr. M. Narasimhulu and passing the same directly to the persons who were in-charge of tabulation work. The check memos did not contain the signatures of the A. R. O. , which is an indication that Mr. Prabhakar Reddy was unauthorisedly collecting check memos. One of the counting agents of the petitioner, therefore, did not sign the satisfaction memos for the last 3 or 4 rounds as a protest to the several irregularities that had taken place in the counting hall. ( 13 ) THE counting staff obtained the signatures of the counting agents of the petitioner under coercion on a separate sheet but not on the check memos prepared by the counting supervisor. The entire counting process was completed by 06. 00 A. M. on 07. 10. 1999 except at table Nos. 3 and 4 in hall No. 2. By then the petitioner was leading over the first respondent as per the information gathered from his counting agents. It was by the R. O. unofficially announced that the petitioner was elected having secured majority votes over the first respondent. At 06. 30 A. M. the first respondent, his aunt-Smt. Lakshmidevamma, and her son Mr. Giridhar Reddy left the counting hall. At about 06. 45 A. M. one Attainder came and informed the R. O. that there was a phone call from Hyderabad. The R. O. went inside the telephone room, closed the door and after 10 minutes he came to the counting hall No. 1 from where he went to hall No. 2 and discussed with Mr. Lakshmaiah and Mr. Narasimhulu, M. R. 0s. of Jammalamadugu and Pedamudiam, and returned to hall No. 1. In the meantime, Mr. Rajamohan Reddy, the contesting candidate for Cuddapah Parliamentary Constituency on behalf of TDP, the first respondent, Mr. Lakshmaiah and Mr. Narasimhulu, M. R. 0s. of Jammalamadugu and Pedamudiam, and returned to hall No. 1. In the meantime, Mr. Rajamohan Reddy, the contesting candidate for Cuddapah Parliamentary Constituency on behalf of TDP, the first respondent, Mr. Giridhar Reddy, and Smt. Lakshmidevamma entered the counting hall stating that they got the majority of 300 votes over the petitioner and requested the R. O. to declare the result. At 07. 00 A. M. Mr. Lakshmaiah and Mr. Narasimhulu along with Prabhakar Reddy and some others came to the R. O. s table in hall No. 1 and handed over some papers showing the number of votes secured by the petitioner and the first respondent. Thereafter, the R. O. orally informed the persons present there that the first respondent had a lead of 300 votes over the petitioner. The petitioner was surprised to see the figures brought fro the counting hall No. 2 and gave a petition for recount of votes at about 07-30 A. M. The R. O. rejected the request of the petitioner for recount by his proceeding in reference No. E628/99 dated 07. 10. 1999 on untenable grounds. ( 14 ) THE result of the election of the first respondent is materially affected due to several irregularities enumerated hereinabove. If true and correct counting were taken place strictly in accordance with the Rules and guidelines, the petitioner would have secured majority of votes. Therefore, it is necessary to order scrutiny in respect of the ballot papers and also the ballot papers declared by the R. O. as invalid and rejected and declare the election of first respondent as illegal, null and void and to declare further that the petitioner has been duly elected. ( 15 ) THE first respondent is the only contesting respondent being the returned candidate. Inter alia in his written statement, his denied all the material allegations made in the petition. He denied the allegation of the presence of Mr. Narasimhulu, M. R. O, Pedamudiam, at the time of counting of votes. According to the first respondent, the arrangements were such that the counting staff could conveniently sort out and count the votes properly. They kept the doubtful votes as per the objections raised by the counting agents separately. He denied the allegation of the presence of Mr. Narasimhulu, M. R. O, Pedamudiam, at the time of counting of votes. According to the first respondent, the arrangements were such that the counting staff could conveniently sort out and count the votes properly. They kept the doubtful votes as per the objections raised by the counting agents separately. At the end of each round of counting at each table, the counting agents signed on the satisfaction memos endorsing that the counting was properly done and they had no objection regarding the counting of votes and they would not ask for any recount. None of the counting agents of the candidates did in fact raise any objection. It is the specific case of the first respondent that Jammalamadugu Assembly Constituency was the stronghold for the TDP from the inception and in all the five General Elections held in the years 1983, 1985, 1989, 1994 and 1999 consistently TDP candidate has been winning the elections over the Congress candidate. In the year 1983, 1985 and 1989 the uncle of the first respondent late P. Siva Reddy was returned with a margin of 17,000, 51,000, and 30,000 votes respectively. After the assassination of late Siva Reddy by the persons belonging to the petitioner, first respondent entered the politics and won both the elections in the years 1994 and 1999 qua the Petitioner by a margin of 11,000 votes and 357 votes receptivity. On account of several developmental works undertaken by the first respondent, he won with a margin of 11,000 votes in the year 1994 and he could have won in 1999 elections also with a large margin but for various corrupt practices committed by the petitioner. ( 16 ) MR. Lakshmaiah, M. R. O, Jammalamadugu, was the A. R. O. , in-charge of hall No. 2 and it was he who decided the doubtful votes and made the necessary entries in the check memos. It must be purely a mistake or oversight if some of the check memos had not been signed. That would not lead to the inference that Mr. Narasimhulu, Pedamudiam, was not in-charge as A. R. O. , Smt. Lakshmidevamma was the chief election agent of the first respondent and Mr. Giridhar Reddy was the chief election agent of Mr. Kandula Shivananda Reddy the Parliament candidate. That would not lead to the inference that Mr. Narasimhulu, Pedamudiam, was not in-charge as A. R. O. , Smt. Lakshmidevamma was the chief election agent of the first respondent and Mr. Giridhar Reddy was the chief election agent of Mr. Kandula Shivananda Reddy the Parliament candidate. The R. O. did not violate any instructions or guidelines issued by the Election Commission. He did not allow any unauthorized persons to enter the counting halls. No written petition was filed during the entire process of counting alleging any irregularities inter alia in it by the petitioner. In fact, the petitioner, the first respondent and the other candidates appointed Advocates who are well versed and acquainted with the election law as their counting agents. The petitioner and his chief election agent were also the practicing Advocates. They did not raise any objections about the irregularities in the counting process. In fact, the correspondents of various daily Newspapers were also noting the number of votes secured by contesting candidates periodically. The Collector and the Superintendent of Police were visiting the counting halls during the process of counting. The allegations made in the petition are very vague, devoid of material facts and full particulars and, therefore, the petition is liable to be dismissed. ( 17 ) BASED on the above pleadings, the following issues are settled for trial:1) Whether the counting arrangement were such that it was not possible for the counting agents to see the voting marks on the ballot papers and to have a close watch of the counting of the ballots and have to totally rely on whatever figures given by the counting staff in respect of the votes secured by each candidate? 2) Whether the, result of the first phase of counting about the total number of votes found in the ballot boxes of all the polling stations in the Constituency was neither announced nor written on the black boards for the candidates? 3) Whether it is a fact that in hall No. 2 several persons other than the counting staff and counting agents were present and freely moving in the counting hall and interfering with the counting process? 4) Whether it is a fact that the first respondent and Smt. Lakshmidevamma along with their gunmen were freely moving in the counting hall and interfering with the counting process? 5) Whether it is fact that one Mr. 4) Whether it is a fact that the first respondent and Smt. Lakshmidevamma along with their gunmen were freely moving in the counting hall and interfering with the counting process? 5) Whether it is fact that one Mr. Prabhakar Reddy, Mandal Development Officer (MDO) of Pedamudiam, who was close follower and supporter of the first respondent was present in counting hall No. 2? 6) Whether Mr. A. Venkateswara Reddy, C. I. of Police, Kondapuram, was present along with three or four constables at the time of counting and was threatening the counting agents of the Petitioner? 7) Whether in the third round the counting staff indulged in irregularities while sorting out the votes candidated-wise? 8) Whether it is a fact that some persons working in the Revenue and Zilla Parishad Departments unauthorizedly entered into the counting hall and interfered with the counting process by counting ballots and bundling them candidate wise to help the first respondent and in the process they used to place less number of votes in the ballot papers bundle than 25 ballots in respect of the first respondent and more number of ballots in each bundle than 25 ballots in respect of the petitioner? 9) Whether the Assistant Returning Officer failed to take any action in sending away Mr. Prabhakar Reddy and all other persons who are unauthorizedly present in the counting hall at the instance of the first respondent despite the written representations given by the petitioner? 10) Whether it is a fact that Mr. Prabhakar Reddy, Mandal Development Officer (MDO), Pedamudiam, was collecting the check memos and deciding the doubtful ballot papers on his own without the intervention of the Assistant Returning Officer? 11) Whether the signatures of the counting agents of the petitioner were obtained on the check memos under coercion on a separate sheet stating that there were no irregularities? 12) Whether it is a fact that the Returning Officer, after receiving a phone call from Hyderabad discussed with Mr. M. Laxmaiah and Mr. M. Narasimhulu and basing on the figures mentioned in the papers handed over to him by Mr. M. Laxmaiah, Mr. M. Narasimhulu and Mr. Prabhakar Reddy, announced that the first respondent was having a lead of 300 votes over the petitioner? 13) Whether the request of the petitioner for recounting was rejected without taking into consideration the various irregularities pointed out therein illegally and arbitrarily? M. Laxmaiah, Mr. M. Narasimhulu and Mr. Prabhakar Reddy, announced that the first respondent was having a lead of 300 votes over the petitioner? 13) Whether the request of the petitioner for recounting was rejected without taking into consideration the various irregularities pointed out therein illegally and arbitrarily? 14) Whether the result of the election is materially affected due to several irregularities committed in the counting process? 15) Whether there is any case made out for recounting? 16) To what relief? ( 18 ) AT the time of enquiry, six witnesses were examined on the side of the petitioner including himself as P. W. 1 and Exs. A. 1 to A. 42 were got marked. Seven witnesses were examined on the side of the first respondent including himself as R. W. 1 and Exs-B. 1 to B. 51 were got marked. The facts which are not in dispute are that the general elections to Cuddapah Parliamentary Constituency and Jammalamadugu Assembly Constituency were held on 05. 09. 1999. Jammalamadugu Assembly Constituency is one of the segments in Cuddapah Parliamentary Constituency. The election Petitioner contested on behalf of the Indian National Congress with hand symbol from the Jammalamadugu Assembly Constituency. The first respondent contested on behalf of the Telugu Desam Party with bicycle symbol as against the Petitioner. Respondents 2 to 10 were also in the fray. However, counting of votes was started on 06. 10. 1999 at 08. 00a. M. at Government Women Polytechnic Building, Cuddapah. The Revenue Divisional Officer, Jammalamadugu, by name, Mr. Butcha Reddy was the R. O. for the Assembly Constituency. The total electorate for the Jammala Madugu Assembly Constituency was 1,43,065. The total valid Votes polled were 1,00,841 and the total rejected votes were 3,082. At the end, of counting the petitioner secured 48,555 votes as against the first respondent who secured 48,912 votes. The respondents 2 to 10 lost their deposits. The first respondent was declared elected with a margin of 357 votes. The first respondent was the sitting MLA and was a former Minister. His uncle late P. Siva Reddy had been returned from the same Constituency earlier thrice consecutively in 1983, 1985 and 1989 elections when contested on behalf of TDP. He was a cabinet Minister in the cabinet of late Mr. N. T. Rama Rao. The first respondent was the sitting MLA and was a former Minister. His uncle late P. Siva Reddy had been returned from the same Constituency earlier thrice consecutively in 1983, 1985 and 1989 elections when contested on behalf of TDP. He was a cabinet Minister in the cabinet of late Mr. N. T. Rama Rao. After the assassination of late P. Siva Reddy, the first respondent entered into politics and contested from Jammalamadugu Assembly Constituency for the first time in the year, 1994. He won that election with a margin of 11,000 votes. The petitioner is challenging the election of the first respondent held in the year 1999 on various grounds as enumerated inter alia in the election petition. Let us, therefore, proceed to discuss the contentious issues. ( 19 ) IT pertains to the seating arrangements made by the authorities for the counting staff to sit and undertake the process of counting and for the counting agents to sit and watch the said process. The main grievance of the petitioner seems to be that on account of the height of the stools provided for the counting agents to sit, and on account of the height of the tables and the size of the wooden trays placed thereon for the purpose of sorting out of votes, neither the counting agents were able to see the process while sitting on the stools nor the counting staff were able to undertake the process of counting while sitting on the chairs. As the wooden trays occupied the entire place on the tables whereon they were placed, the counting staff after sorting out the votes, used to count them by placing upon their thighs while, sitting on the chairs. Therefore, the counting agents were not able to see the marks on the ballots and they had to solely rely upon the figures furnished by the counting staff about the votes secured by each of the contesting candidates. ( 20 ) THE oral evidence on the point is that of P. Ws. 1 to 6. Therefore, the counting agents were not able to see the marks on the ballots and they had to solely rely upon the figures furnished by the counting staff about the votes secured by each of the contesting candidates. ( 20 ) THE oral evidence on the point is that of P. Ws. 1 to 6. P. W. 1 did depose in his evidence that the counting agents could not see the process of counting on account of the height of the wooden stools and even for the counting staff they could not undertake the process of sorting out of votes by sitting on account of the height of the wooden table and the height of the wooden trays placed on the tables. It is the contention of the learned counsel appearing for the petitioner that the statement made on oath by P. W. 1 in chief-examination has not been controverted in the cross-examination and, therefore, it shall be deemed to have been accepted. True, there has been no specific cross examination on this point except trying to elicit as to whether any written complaint has been lodged communing the irregularities in the counting of votes. P. W. 2 also deposed in the same lines. He added further that the counting agents were not allowed to stand and watch the process and, therefore, it added further to the misery. P. W. 3 is the Chief Election Agent of the petitioner and is a practicing Advocate. He did not speak anything about the alleged inadequate or irregular arrangements. His evidence shows that he was present at Hall No-2, during the time of counting. He the chief election agent, particularly a practicing Advocate could have taken up the task by protesting against the same. Whether he did not raise his little finger, the probability that emerges from out of the said circumstance negates the theory propounded. The evidence of P. W. 4 unequivocally shows that the counting process in hall No. 1 has been done smoothly. PW. 5 did not speak anything about the irregular arrangements. He was obviously sitting at table No. 4 in hall No. 2. PW. 6 yet another practicing advocate was sitting at A. R. Os table in Hall No. 2 as a counting agent of the petitioner. He too did not complain anything about the said arrangements. It is appropriate here to consider Exs. He was obviously sitting at table No. 4 in hall No. 2. PW. 6 yet another practicing advocate was sitting at A. R. Os table in Hall No. 2 as a counting agent of the petitioner. He too did not complain anything about the said arrangements. It is appropriate here to consider Exs. A. 2 and A. 3, the complaints lodged by the petitioner. The complaints as regards the counting arrangements have not been set forth in any of these documents. ( 21 ) IT may be mentioned at the outset that this specific grievance of the petitioner is exclusive to hall No. 2. It is the positive case of the petitioner that the whole of the counting process in hall No. 1 was peaceful. The evidence of P. W. 4 unequivocally shows that the counting process in hall No. 1 was done smoothly. It is nobody s case that arrangement made in hall No. 2 are different than the arrangements made in hall No. 1. Having regard to the same, at the threshold the grievance of the petitioner in the absence of any cogent evidence in respect thereof appears to be improbable. It is legitimate to come to a definite conclusion for any prudent persons that the arrangements could have been made similarly in Hall No. 2 as in the hall No. 1. To isolate hall No. 2 there must be a reason behind the same. The alleged irregularity is not aimed at the petitioner alone. If such difficulty is there for the counting agents to watch, it must equally be there for the counting agents of the other contesting candidates. Well, there has been no complaint whatsoever on the part of the other counting agents. As discussed hereinabove, except the oral testimony of the witnesses examined on the side of the petitioner, there is nothing on record to show about the height of the stools provided for the counting agents to sit and the height of the tables provided for counting of the votes and the size of the wooden trays placed on the tables. If the measurements are forthcoming, one would have been in a position to assess the veracity of the statement of the witnesses examined on the side of the petitioner and the legitimacy or otherwise of the grievance set forth by the petitioner in this regard. If the measurements are forthcoming, one would have been in a position to assess the veracity of the statement of the witnesses examined on the side of the petitioner and the legitimacy or otherwise of the grievance set forth by the petitioner in this regard. But, no such relevant and cogent evidence is coming forth in this case. Thus, the probabilities weigh very much against the alleged grievance set forth by the petitioner. As against the above, there is the-oral evidence adduced on the side of the first respondent running counter to the case of the petitioner. ( 22 ) FOR the foregoing reasons, the oral testimony of P. Ws. 1 and 2 too cannot be accepted without any pinch of salt. Therefore, I have no hesitation to hold that the petitioner is not able to prove even by the test of preponderance of probability that the counting arrangements were such that his counting agents were not able to see the counting process properly. The issue is, therefore answered in the negative. ( 23 ) IT has been specifically averred at the end of para 10 of the election petition that the result of the first phase of counting about the total number of votes found in ballot boxes of all the polling stations in the Constituency was neither announced nor written on the black boards which were kept in the counting Halls. But there has been no whisper about the second phase of counting, namely, the actual counting of votes pertaining to Jammalarnadugu Assembly Constituency. There has been no gainsaying about the total number of votes polled and about the total member of valid and rejected votes out of them. The result at the end of first phase of counting would be the segregation of votes polled for the Parliament election and for the Assembly election and bundling them properly. At this stage, the votes secured by the respective candidates either for the Parliament election or for the Assembly election would not be known. In that view of the matter, the issue loses every significance. It gains significance only if it is alleged that the result at the end of each round of counting has not been mentioned on the black board so as to enable the counting agent to tally with the particulars noted by them individually qua the figures mentioned on the blackboard. It gains significance only if it is alleged that the result at the end of each round of counting has not been mentioned on the black board so as to enable the counting agent to tally with the particulars noted by them individually qua the figures mentioned on the blackboard. But that is not set forth in the petition. ( 24 ) P. W. 1 at the end of his chief-examination deposed that the results at the end of first and accord round of counting were written on the black board but from third round onwards the results were not written on the black board. P. W. 2 did not depose about the same. P. W. 3 deposed that the, particulars of the votes obtained by the candidates have been written on the black board for the first round only. P. W5 deposed that, the, number of votes secured by each candidate at the end of fifth round of counting was written on the black board and that those figures should be based on the cumulative list prepared by the election staff at the end of that round. However, he maintained that no cumulative sheets had been provided insofar as hall No. 2 is concerned. P. W. 6 did not depose anything about the same. The above oral evidence is inconsistent and contradictory on the point. That apart, there has been no specific plea in the election petition and no issue has been framed in regard thereto. The inconsistent evidence of PWs. 1, 3 and 5 disproves the case of the petitioner on this issue. Therefore, the issue is answered in the negative. ( 25 ) THE quintessence of the grievance of the petitioner on these issues seems to be that there has been unauthorized presence of some of the staff members who have not been drafted for the purpose and there has been unauthorized interference in the counting process by some. It is said generally that the persons working in the Revenue and Zilla Parshid Departments unauthorisedly entered into the counting Hall and interfered with the counting process by counting of the ballots and several persons other than the counting staff and counting agents were present and were freely moving in the counting hall interfering with the counting process. It is said generally that the persons working in the Revenue and Zilla Parshid Departments unauthorisedly entered into the counting Hall and interfered with the counting process by counting of the ballots and several persons other than the counting staff and counting agents were present and were freely moving in the counting hall interfering with the counting process. Who are they, what is their number and the manner in which they interfered with the counting process are not known. A sweeping and general allegation has been made without any specific details. Well the magnitude of the alleged illegality could not have been undermined and disregarded by anybody. It would have certainly aroused a suspicion in one s mind and prompted him to at swiftly, had it been a fact. No complaint in writing has been made in this regard by the petitioner or his chief election agent or any of his counting agents nor did they bring it to the notice of the Election Observer, the District Collector and the Superintendent of Police who admittedly visited the counting, which would have been done had it been a fact All this is improbability factor. Let us examine the plea take in thereto and adduced in proof thereof. In para 14 of the election petition a specific plea has been taken that Mr. Shankar Reddy and Mr. S. Subba Reddy his counting agents at table Nos. 2 and 3 in counting hall No. 2 raised an objection regarding sorting out of the ballot papers candidate-wise as they like and regarding the unauthorised entry of the staff working in Revenue and Zilla Parshid Departments and their unauthorised interference in the counting process by bundling the ballots and keeping more votes in the bundles of the petitioner and less votes in the bundles of the first respondent and the inaction on the part of the A. R. O. on such objection. Having taken such a plea the petitioner failed to examine the said two persons. Therefore, it is legitimate to draw an adverse inference. ( 26 ) TURNING to the oral evidence P. W. 1 having deposed that in hall No. 2 several other Persons Other than the Counting staff were present and among them one Mr. Having taken such a plea the petitioner failed to examine the said two persons. Therefore, it is legitimate to draw an adverse inference. ( 26 ) TURNING to the oral evidence P. W. 1 having deposed that in hall No. 2 several other Persons Other than the Counting staff were present and among them one Mr. P. Giridhar Reddy, Smt. P. Lakhmidevamma and their gunmen were present and that they were acting highhandedly and influencing the counting staff by pushing aside his counting agents and that he raised an objection with the A. R. O. in regard thereto and also presented a complaint in writing to the R. O. failed to produced the said written complaint before the Court. P. W. 3 although stated in his evidence that number of persons belonging to Revenue Department, Panchayat Raj Department and Police Department were coming and going in the counting hall unauthorisedly, he did not state about their unauthorized interference in the counting process as deposed by P. W. 1. P. Ws. 2, 5 and 6 did not speak anything about the unauthorized presence of the staff members belonging to Revenue and Panchayat Raj Departments. Even the evidence of P. Ws. 1 and 3 is not consistent on the point as discussed herein above. For the above reasons the evidence of P. Ws. 1 and 3 on the point cannot be accepted, without any pinch of salt. ( 27 ) IT is appropriate here to consider Ex. A. 3. Under the original of Ex. A. 3 a written complaint seems to have been lodged by the petitioner with the R. O. Inter alia, is alleged that some staff pertaining to Revenue Department, Zilla Parshid, and Mandal Parshid supervising the counting work without any authority and some persons without any deputation to counting work had been seen in the counting hall and, therefore, it appears that they purposefully came to the counting hall, interfered with the counting work to do injustice to him. The original of Ex. A. 3 was received at 07. 00 A. M. on 07. 10. 1999 as can be seen from the endorsement made thereon. P. W. 1 while deposing that he gave a written complaint to the R. O. did not speak anything about the time, at which the complaint was lodged. None of the witnesses deposed about the time at which Ex. A. 3 was presented. 00 A. M. on 07. 10. 1999 as can be seen from the endorsement made thereon. P. W. 1 while deposing that he gave a written complaint to the R. O. did not speak anything about the time, at which the complaint was lodged. None of the witnesses deposed about the time at which Ex. A. 3 was presented. No plea to the effect that a false endorsement has been made purposefully, has been taken in the election petition. The petitioner who himself is a practicing Advocate would not have kept quite when such a false endorsement had been made showing the date of receipt as 07. 10. 1999. For the said reasons it is legitimate to conclude that the original of Ex. A. 3 was lodged at the time at which it purported to have been made and it is not a contemporaneous document. Lack of contemporanity takes away the efficacy of the contents mentioned therein. On account of the same, it cannot be said that the contention of the first respondent that it is nothing but an afterthought aimed at to support the demand for recounting of the votes having regard to the narrow margin of votes secured by the first respondent as against the petitioner. Even in this document the particulars are lacking. Therefore, Ex. A. 3 looses the probative value. For the foregoing reasons, the issues are answered in the negative. ( 28 ) IT is the grievance of the petitioner that Smt. P. Lakshmidevamma and her son Mr. P. Giridhar Reddy along with their gunmen were freely moving in the counting hall. It is the case of the first respondent that the said the Smt P. Lakshmidevamma was his chief election agent and Mr. P. Giridhar Reddy was the chief election agent of the TDP Parliamentary Candidate. P-W. 3 the chief election agent of the petitioner, squarely admitted that Smt P. Lakshmidevamma was the chief election agent. Of course, he expressed want of knowledge about the latter. At any rate, he did not deny that Mr. P. Giridhar Reddy was also the chief election agent of the Parliamentary candidate. ( 29 ) P. W. 1 deposed in his chief-examination that in hall No. 2 several other persons other than the counting staff were present and among them one Mr. At any rate, he did not deny that Mr. P. Giridhar Reddy was also the chief election agent of the Parliamentary candidate. ( 29 ) P. W. 1 deposed in his chief-examination that in hall No. 2 several other persons other than the counting staff were present and among them one Mr. P. Giridhar Reddy, Smt. P. Lakhmidevamma and their gunmen were present and that they were acting highhandedly and influencing the counting staff by pushing aside his counting agents and that he raised an objection with the A. R. O. in regard thereto and also presented a Complaint in writing to the R. O. The written Complaint said to have been lodged by him has not been filed in this case. If such a complaint has not been filed it improbablises the theory. In the petition filed by the petitioner seeking recount, Under the original of Ex-A. 5, he did not mention anything about the alleged unauthorized Presence Of Smt. P. Lakshmidevamma and Mr. P. Giridhar Reddy. ( 30 ) P. W. 3 deposed in his chief that some persons unauthorisedly entered the counting hall and they are Smt. Lakshmidevamma, Giridhar Reddy, Sivanagi Reddy, Narasaiah and their gunmen. However, in the cross-examination, he admitted as discussed hereinabove that Lakshmidevamma was the Chief Election Agent of the first respondent. P. Ws. 2,5 and 6 did not speak anything about Lakshmidevamma and Giridhar Reddy moving freely in the counting hall. Apart from the fact that no written complaint specially lodged in that regard even Ex. A. 5 does not contain any reference in regard thereto. Having regard to the fact that Smt. Lakshmidevamma was the chief election agent of the first respondent and Giridhar Reddy was the chief election agent of the parliamentary candidate and given the inconsidency in the oral evidence and above all the absence of, written complaint and any reference in regard thereto in Ex. A. 5, the oral evidence of P. Ws. 1 and 3 cannot be accepted. Therefore, the issue shall have to be answered in the negative. A. 5, the oral evidence of P. Ws. 1 and 3 cannot be accepted. Therefore, the issue shall have to be answered in the negative. ( 31 ) ABOUT the alleged unauthorized presence of Sri Venkateswara Reddy, Circle Inspector of Police in the counting hall, P. W. 1 deposed that the said Venkateswara Reddy, entered the hall No-2 at the time of counting along with his gunmen and the Circle Inspector was threatening his counting agents whenever they had been complaining about the counting process. He further deposed that he lodged a complaint under the original of Ex. A. 2 with the R. O. and the R. O. asked the said Inspector of Police to leave the counting ball and that even though he had been sent out, again he came back. In the cross-examination, however, he admitted that the said Venkateswara Reddy was on bandobust duty on that day. He further admitted that he had not given any written complaint to any of the authorities complaining the same. Even P-W. 2 who deposed that Venkateswara Reddy was in counting hall and he used to threaten the counting agents, admitted in the cross-examination that he had not given personally any report to the R. O. or the A. R. O. P. W. 3 deposed that after the third round of counting, some persons unauthorisedly entered the counting hall and among them Venkateswara Reddy was also present and he was moving in both the counting halls during the entire process of counting. He further deposed that the Inspector of Police and the gunmen did not allow the counting agents of the petitioner to raise any objections and the original of Ex. A. 2-complaint was lodged at 01. 30 A. M. in the intervening night of 06/07. 10. 1999. He pleaded want of knowledge about the Circle Inspector s posting on bandobust duty at counting hall. P. W-3 is a practicing Advocate and he is the chief election agent of the petitioner. He cannot legitimately plead any ignorance of the same. He did not lodge any complaint with the A. R. O. or the R. O. , complaining the same. PW. 5 did not speak anything about the high handed behavior of the Circle Inspector. P. W-3 is a practicing Advocate and he is the chief election agent of the petitioner. He cannot legitimately plead any ignorance of the same. He did not lodge any complaint with the A. R. O. or the R. O. , complaining the same. PW. 5 did not speak anything about the high handed behavior of the Circle Inspector. P-W. 6, however, deposed that when he gave a written complaint at the end of round of 5th round of counting objecting about the unauthorized interference of the Circle Inspector of Police Venkateswara Reddy and Smt. P. Lakshmidevamma threatened him. He did not speak anything about the other details alleged against the Inspector of Police. The fact remains that Venkateswara Reddy was posted on bandobust duty at hall No. 2. Ex. A. 2 is the certified copy of report lodged by the petitioner with the R. O. inter alia it has been mentioned, there that he noticed the Inspector of Police threatening his counting agents with intention to divert their attention from the counting tables. The original of Ex. A. 2 was received at 07. 00 A. M. on 07. 10. 1999. No cogent evidence is forth coming that a false endorsement has been made on Ex. A. 2. Like Ex. A. 3, Ex. A. 2 too suffers from the same vice that it is not contemporaneous and for the same reasons it looses all probative value. Having regard to the fact that the petitioner, his chief election agent and P-W. 6-his another counting agent are all Advocates having sufficient experience in election law, would not have tolerated the highhanded attitude of the Inspector of Police so as to help the first respondent. Above all, it has not been mentioned as one of the grounds in Ex. A. 5-petition filed seeking recount. Yet another improbability is that when according to P-W. 3 the chief election agent of the petitioner, the Circle Inspector has been moving in both the halls, why there has been no such allegation insofar as the hall No. 1 is concerned and why it is peculiar to hall No. 2 alone. This improbability certainly takes away the efficacy of the allegation made against Inspector of Police by the petitioner. ( 32 ) WITH this type of evidence available on record, it is not reasonable to conclude that the allegation has even been prima-facie established. This improbability certainly takes away the efficacy of the allegation made against Inspector of Police by the petitioner. ( 32 ) WITH this type of evidence available on record, it is not reasonable to conclude that the allegation has even been prima-facie established. The issue is answered in the negative similar criticism has been made against the unauthorised presence of one Mr. Prabhakar Reddy, M. D. O. of Pedamudiam Mandal and his participation in the counting process making corrections in the check memos, signing them and his interference at the end for the R. O. to announce the majority of the first respondent. The evidence of the petitioner shows that the whole of the counting process has been video graphed. The videocassette sent along with the election material by the District Collector has been played in the presence of both the parties and their counsel in open Court. It shows only the preliminary stage of counting process. It is represented by the learned counsel appearing for the petitioner that the person seen along with the A. R. O. and others at the A. R. O. s table is the said Prabhakar Reddy. It has been denied by the other side. The proper course should have been to played the cassette and see that the said person is identified by the witnesses examined on either side. However, such course has not been adopted in this case. Therefore, contention that one among the people who are present at the A. R. O. s table is Mr. Prabhakar Reddy cannot be accepted in the absence of any proper identification. P. W. 1-the petitioner was so specific that Prabhakar Reddy was collecting the check memos from the counting supervisors and sending them to R. O. s table for tabulation; and that he carried out corrections in some of the check memos; and that his counting agent Mr. Visveswara Reddy (P. W. 6) sitting at the A. R. O. s table refused to sign on the check memos on that count. P. W. 1 deposed in his evidence that he presented a complaint in writing to the R. O. about the unauthorised presence of the followers of the first respondent including Mr. Prabhakar Reddy. No such report, however, is forthcoming in this case. When the original of Ex. A. 2, was said to have been lodged with R. O. though on 07. 10. Prabhakar Reddy. No such report, however, is forthcoming in this case. When the original of Ex. A. 2, was said to have been lodged with R. O. though on 07. 10. 1999, it is surprising as to why such complaint has not been lodged by Pw. 1 wirh the R. O. , quq the said Prabhakar Reddy. P. W. 1 had to admit in the in cross-examination that in Ex. A4-check memos signatures of the said Prabhakar Reddy were not there. No attempt has been made to show that the entries in check memos contained the handwriting of the said Prabhakar Reddy. Ultimately he had to admit that his counting agents have signed on the satisfaction memos. Of course, he added that the signatures of his counting agents on the memos have been obtained after the initial counting. The explanation is quiet against the natural course and it would be discussed a little later in appropriate issue framed in regard thereto. ( 33 ) WHILE that is the state of affairs, the allegation that Mr. Prabhakar Reddy used to make entries on the check memos and he used to sign on the cheek memos is ultimately, proved, to be not contact if as much as, Ex. A. 4 check memos do not contain the: sign gross of Mr. Prabhakar Reddy at all. His presence at the counting he has not been proved cogently by and evidence. No complaint whatsoever similar to Ex. A. 2 lodged to the aid, Mr. Prabhakar Reddy with the R. O. Above, all it has mot been mentioned. as one of the grounds while seeking recount under the EX. A. S. For the said reasons, the only oral evidence on the point on the side of the petitioner cannot be accepted. Here is no Prima facie evidence Reddy and his alleged participation in the counting process. For the above reasons, these issues shall have to be answered in the negative. I have already discussed about the allegation that the counting staff indulged in irregularities while sorting out the votes candidate wise. Here is no Prima facie evidence Reddy and his alleged participation in the counting process. For the above reasons, these issues shall have to be answered in the negative. I have already discussed about the allegation that the counting staff indulged in irregularities while sorting out the votes candidate wise. The allegations that they resorted to undertake the Counting process by keeping the votes above their thighs on account of which it was not visible to the counting agents of the petitioner to see the marks on the ballots and it was not possible for them to note down the number of votes secured by the petitioner and that while bundling the votes more number than the requisite 25 used to be placed in the case of the petitioner, and less number of votes than 25 used to be placed in the case of first respondent so as to inflate the number of votes secured by the first respondent are wild, vague and lacking in material particulars. It is coupled with alleged unauthorised interference of the staff belonging to Revenue and Zilla Parishad Departments. If the allegation of placing more number of votes than requisite 25 while bundling the votes on the side of the petitioner is proved to be correct, it would definitely affect the result of the election materially. Such an allegation would not the miss the attention of ( 37 ) P. W. 1 who, lodged, the originals of EXs. A. 2 and A. 3-petitioners would have lodged a similar such application complaining the threat and coercion against his counting agents and obtaining their signatures on the check memos, under such circumstances particularly having regard to the seriousness of the allegation had it been a fact. Above all, Ex. A. 5 cut at the root of the case of the petitioner. Therefore, the version of the petitioner prima facie is not correct and has not been attempted to be substantiated even by prima facie evidence. For the above reasons this issue shall have to be answered in the negative. Above all, Ex. A. 5 cut at the root of the case of the petitioner. Therefore, the version of the petitioner prima facie is not correct and has not been attempted to be substantiated even by prima facie evidence. For the above reasons this issue shall have to be answered in the negative. ( 38 ) A faint attempt has been made to show that the R. O. after unofficially announcing that the petitioner got majority over the first respondent, received a phone call from Hyderabad and after having attented the said phone call consulted the A. R. O. and the other staff, and short thereafter the A. R. O. , Prabhakar Reddy and others brought papers and at the instance of Smt. P. Lakshmidevamma and Mr. Giridhar Reddy, the R. O. announced that the first respondent got majority over the petitioner. To substantiate this allegation mere proof of circumstances that a room has been there by the side of the table of the R. O. and that he received a telephone call, cannot give rise any inference that a call has come from Hyderabad. Nobody knows whence the R. O. got the phone call and to whom he is obliged. For the R. O who is to have unofficially announced that the petitioner got majority must have a strong reason for ultimately announcing officially that the first respondent got majority over the petitioner in alter disregard to the earlier announcement said to have been made unofficially. ( 39 ) NO irresistible conclusion can be drawn from out of such a circumstance even found assuming for a moment that it is proved. Except the oral account of P. W. 1 no attempt has been made to show that a call has been received by the R. O. The evidence on record falls far short of the required proof and hence it remains as a mere allegation. The issue is therefore held in the negative. ( 40 ) THESE are the relevant and main issues. Of course, the findings on all other issues have bearing on the merits of these issues. Rule 64 of the Election Rules requires an application to be made seeking recounting of the votes after announcement of the result and before the declaration of the result. In this case, pursuant to the said Rule, the petitioner submitted an application under the original of Ex. Rule 64 of the Election Rules requires an application to be made seeking recounting of the votes after announcement of the result and before the declaration of the result. In this case, pursuant to the said Rule, the petitioner submitted an application under the original of Ex. A. 5 requesting the R. O. to order for recount. ( 41 ) ADMITTEDLY the counting process in hall No. 1 was peaceful and there has No been no complaint whatsoever the petitioner in respect thereof. The grievance of the petitioner centers rounds the process undertaken by the authorities in counting hall No. 2. As discussed hereinabove, as regards arrangements made there is no reason to distinguish between hall No. 1 and hall No. 2. It is inconceivable as to why hall No. 2 alone has been chosen for indulging in the so- called irregularities or illegalities. Equally there is no reason as to why the persons who opted to resort to such malpractices have left out hall No. 1. In that view of the matter, the allegations which are peculiar to hall No. 2 prima facie appear to be improbable. Apart from the findings reached on all other issues as discussed hereinabove, the allegations lack in material particulars and details. Above all, these specific allegations made inter alia in the election petition are conspicuously absent in the petition filed by the petitioner requesting for recount. The only allegation mentioned in the petition filed for recount inter alia is that as per the information got by the petitioner from his counting agents, he secured majority over the first respondent but the authorities announced that the first respondent got majority after consulting the A. R. O. and that, therefore, suspicion centered round the A. R. O. The counting agents of the petitioner who are said to have noted down the result at the end of each round of counting on papers and notebooks, have not filed those papers and notebooks before the Court to probabilise at least that the petitioner secured majority in hall NO. 2 over the first respondent. If such evidence is forthcoming, there would have been a prima-facie case for the petitioner to seek recount. Non-filing of the said papers and notebooks shall not, under the circumstances, be ignored as imponderable circumstances. 2 over the first respondent. If such evidence is forthcoming, there would have been a prima-facie case for the petitioner to seek recount. Non-filing of the said papers and notebooks shall not, under the circumstances, be ignored as imponderable circumstances. ( 42 ) AN attempt his been made to show that the preparation of the check memos by correcting the figures mentioned inter alia therein excites suspicion that there is something fishy in the, counting process insofar as hall No. 2 is concerned. It is sought to be shown that in Exa. 1 the total number of votes polled has been shown as 1,00,841 and the total number of rejected votes has been shown as 3,082 and, therefore, the cumulative total shows the figure at 1,03,923. However, the sum total of the votes as can be seen, from Forms-20 comes to 1,03,338. There is a reference of 585 votes which bas not been explained in any manner and, therefore, it shows that prima facie the counting is not proper. At the outset it may be mentioned that it has not been averred in the election petition anything about the discrepancy in the total tally of votes. The whole grievance of the petitioner as can be seen from para 19 of the election petition appears to be that on account of unauthorized interference of Mr. Prabhakar Reddy the figures in the check memos have been manipulated so as to ultimately show the difference of 357 votes in favour of the first respondent. But on a carefully scrutiny there appears no discrepancy at all. Ex. A. 1 shows the total number of electorate, total number of valid votes polled and total number of rejected votes. It does not obviously, include the postal ballots. Ex. A. 25 is the report sent by the R. O. to Chief Electoral Officer. As can be seen from this report, 585 postal ballots have been received. If these votes are added to the total ascertained from Forms-20 i. e. 1,03,338+585 it comes to 1,03,923. What Ex. A. 1 contains, therefore, is the total votes polled which are inclusive of postal ballots also. I therefore, see no discrepancy kept in the counting of votes as sought to be highlighted by the petitioner. If these votes are added to the total ascertained from Forms-20 i. e. 1,03,338+585 it comes to 1,03,923. What Ex. A. 1 contains, therefore, is the total votes polled which are inclusive of postal ballots also. I therefore, see no discrepancy kept in the counting of votes as sought to be highlighted by the petitioner. ( 43 ) THE second attempt on the part of the petitioner is about the correction of figures in the check memos prepared at each table at the end of each round. Ex. A. 4-bunch of check memos are filed on the side of the petitioner. In some of these check memos, there appears the correction of figures. It may be mentioned at the outset that the check memos will be prepared at the counting tables by the counting supervisor. Then they would be sent along with the doubtful votes left uncounted at their table to the A. R. O. 's table or R. O. s table, as the case may be, whereat the decision would be taken about the doubtful votes. Consequently there will be addition of votes to the figures that have already been mentioned in the check memos by the counting supervisor. After such additions or deletions, the A. R. O or the R. O. , as the case may be, would sign on these check memos. Therefore, corrections do occur in a natural course and there is nothing extraordinary as sought to be highlighted by the learned counsel appearing for the election petitioner. When there is no dispute about the total number of electorate, total number of valid votes polled, total number of votes rejected, total juniper of Postal ballots and when those figures are tallying if counted even from Forms-20 prepared at the end, the corrections in the check memos sought to be highlighted cannot have any significance at all. In para II of the election petition the entire procedure and methodology followed in the counting process has been narrated. That shows that all is well that ended well. No plea about the fishy nature of the preparation of the check memos has been pleaded. That apart when the counting agents of the petitioner signed voluntarily the satisfaction memos, which cannot be doubted as discussed herein above, they cut at the root of the case of the petitioner. That shows that all is well that ended well. No plea about the fishy nature of the preparation of the check memos has been pleaded. That apart when the counting agents of the petitioner signed voluntarily the satisfaction memos, which cannot be doubted as discussed herein above, they cut at the root of the case of the petitioner. In that view of the matter, the feeble attempt sought to be made on the part of the petitioner by seeking to make out a case at the time of arguments cannot be countenanced since it has not been his case initially as set out in the election petition. Furthermore, I see that there is nothing extraordinary in the total tally of votes. Therefore, the contention of the learned counsel appearing for the petitioner that there appears to be some discrepancy in the total tally and that discrepancy offers a prima-facie case for recounting merits no consideration. ( 44 ) YET another discrepancy sought to be highlighted is that as can be from seen Ex. A. 1 the petitioner got 48 555 votes qua the first respondent who got 48,912, the difference being 357 votes. However, as per Form-17 in hall No. 1 the petitioner got 24,167 and in hall No. 2 he got 24. 112 in all 48,279 whereas the first respondent got 24,092 and 24,593 in those halls, the total of which comes to 48,675. The difference in between them appears to b6 39 which according to the petitioner has not open either reconciled or explained. All this is on account of the confusion. Ex. A. 23 pertains to round No. 15 but not round No. 5. Thinking it as the check memo for round No. 5, the petitioner seeks to compare with the corresponding Form-20 pertaining to round No. 5 in the bunch-Ex. A. 27. In fact, in Ex. A. 27-bunch Form-20 pertaining to round No. 5, if perused, shows the same figures. It is true that in Ex. A. 23 some corrections in the figures have been made but on a careful perusal of the same, I find that there is no discrepancy at all. If Ex. A. 23 is perused in juxtaposition with corresponding Form-20 in the Ex. 27 bunch pertaining to round No. 15, the figures are tallying. The total ballots valid and rejected have been shown as 994 in Ex. A . If Ex. A. 23 is perused in juxtaposition with corresponding Form-20 in the Ex. 27 bunch pertaining to round No. 15, the figures are tallying. The total ballots valid and rejected have been shown as 994 in Ex. A . 23 and the same figure has been shown in Ex. A. 27 pertaining to round No. 15. Above all, Ex. A. 23 shows that it is the check memo at table No. 1, round No. 15 of hall No. 1. Insofar as hall No. 1 is concerned, the petition has no grievance at all as the counting process was peaceful and ultimately he got lead over the first respondent. Therefore it is obvious that the petitioner is seeking to catch out every straw so as to ultimately make out a prima-facie case for recounting without any substance. ( 45 ) IT is the contention of the learned counsel appearing for the petitioner that the instructions given by the Election Commission to various election authorities have not been followed in this case and they are, 1) the R. O. of each Constituency shall make arrangements to record through yideography critical events during the process of electioneering, including but not restricted to the period of public campaign, the day of poll, the transport and receipt of polled ballot boxes and other materials, counting of votes and the declaration of results in an independent, intelligent and purposeful manner but in this case videocassette does not contain important events except showing the preliminary, arrangements; 2) that the counting supervisor shall be as far as practicable only the Gazetted. Officers of the Central or State Governments or the Officers of comparable status and the counting assistance shall similarly be drawn from officers of comparatively higher level but contrary to the said instructions, staff has been drawn in this case; 3) that only the counting supervisors and counting assistants; persons authorised by the Election Commission; public servants on duty in connection with the election; candidates, their election agents and counting agents be allowed inside the counting hall and those public servants on duty do not normally include police officers; 4) that the Presiding Officer must satisfy himself that the bundles of valid ballot papers have been correctly stored and do not contain any ballot paper which ought to be rejected or ought to be placed in the valid ballot papers of any other candidate and to ensure the same, be must make a test check of the valid ballot papers but in this case such a test check has not been made; 5) that to ensure further accuracy in the counting of votes, five per cent of total number of valid ballot papers of the different contesting candidates shall be counted by the Presiding Officer but that has not been done; and 6) that if the margin of votes secured by first two leading candidates is less than five per cent of the total valid votes polled to all the candidates, the result shall not be declared in accordance with Section 66 of the Representation of the People Act and the declaration of result in violation of these instructions shall be deemed to be null and void abinitio and shall be so declared by the Commission if such violation/contravention is brought to its notice after the declaration of the result. That these circumstances throw any amount of suspicion and they constitute a prima-facie case for directing a recounting is the contention of the learned counsel appearing for the election petitioner. ( 46 ) TO buttress the contention that instructions given by the Election Commission partake statutory character reliance is sought to be placed upon the judgment of the Apex Court in Union Of India V. Association For Democratic Reforms AIR 2002 SC 2112 . ( 46 ) TO buttress the contention that instructions given by the Election Commission partake statutory character reliance is sought to be placed upon the judgment of the Apex Court in Union Of India V. Association For Democratic Reforms AIR 2002 SC 2112 . The Apex Court at the end of para 23 that the phrase "conduct of elections" is held to be of wide amplitude which would include power to make all necessary provisions for conducting free and fair elections. Therefore, it is the contention that these guidelines issued by the Election Commission in the areas which are not covered by the Election laws are statutory in nature. A Constitution Bench of the Apex Court in Mohinder Singh Gill V. Chief Election Commissioner AIR 1978 SC 851 held that the Election Commission is entitled to exercise certain powers under Article 324 of the Constitution of its own right in an area not covered by Representation of the Act, 1951 and the Rules framed there under. Therefore, the Election Commission is competent in appropriate cases to order repoll of entire Constituency where there is necessary and it will be an exercise of power within the ambit of its functions under Article 324 of the Constitution. ( 47 ) IN Shaligram Shrivastava V. Naresh Singh Patel 2003 (1) Supreme 767 the Apex Court held that non-submission of the declaration as required under the instructions dated 28. 03. 1997 regarding information under Section 8 of the Representation of the People Act, 1951 is a defect of substantial nature and hence nomination paper was rightly rejected by the R. O. As can be seen from the said Judgment it is obvious that the scrutiny of nomination papers is a statutory duty of the R. O. As can be seen from Section 8 of the Representation of People Act for the purpose of scrutiny further information is necessary. Such power vested in the R. O. is not dependent upon any instructions issued by the Election Commission. In exercise of that power and in the process, if the necessary declaration is not given by the candidate, the nomination paper can be rejected. In that view of the matter, the Apex Court held that rejection of the nomination paper for want of necessary declaration pursuant to the instructions given by the Election Commission would be a valid ground for rejection. In that view of the matter, the Apex Court held that rejection of the nomination paper for want of necessary declaration pursuant to the instructions given by the Election Commission would be a valid ground for rejection. To say that those instructions partake the character of statutory rules, the Judgments cited and discussed hereinabove are not direct on the point. ( 48 ) ON the other hand, the learned senior counsel appearing for the first respondent seeks to place reliance upon a Judgment of the Apex Court in Lakshmi Charan Sen V. A. K. M. Hassan Uzzaman ( AIR 1985 SC 1233 ), The Apex Court held in para 21 thus:there is no provision in either of the Act of 1950 or Act of 1951 which would justify the proposition that the directions given by the Election Commission have the force of law. Election laws are self-contained codes. One must look to them for identifying the rights and obligations of the parties, whether they are private citizens or public officials. Therefore, in the absence of a provision to that effect, it would not be correct to equate with law, the directions given by the Election Commission to the Chief Electoral Officers. The Election Commission is, of course, entitled to act ex debito justitiae in the sense that, it can take steps or direct that steps be taken over and above those which it is under an obligation to take under the law. It is, therefore, entitled to issue directions to the Chief Electoral Officers. Such directions are binding upon the latter but their violation cannot create rights and obligations unknown to the election law. We are of the opinion that the directions issued by the Election Commission, though binding upon the Chief Electoral Officers, cannot be treated as if they are law, the violation of which could result in the invalidation of the election, either generally, or specifically in the case of an individual. " ( 49 ) ITS being a Constitution Bench Judgment, it holds the field. Therefore, the contention of the learned counsel for the petitioner merits no consideration. For the first time the petitioner is pointing out the alleged infractions at the time of arguments . " ( 49 ) ITS being a Constitution Bench Judgment, it holds the field. Therefore, the contention of the learned counsel for the petitioner merits no consideration. For the first time the petitioner is pointing out the alleged infractions at the time of arguments . When admittedly the counting process was quite unimpeachable in so far as hall number 1 is concerned and the so-called infraction of the Rules could not have any impact thereon how could it be in so far as hall number 2 is concerned is the probability factor. Secondly when all the counting agents of the petitioner signed the satisfaction memos and those memos are unassailable as discussed herein above equally the alleged violations cannot have any impact. Of course the satisfaction memos are sought to be assailed on the premise that at best they may amount to admissions made by the agents of the petitioner and admissions are not conclusive proof. But then they may operate as estoppels and constitute best evidence against the party making them. If the admissions are unequivocal the petitioner cannot avoid them on the above ground. I have already discussed about the same in issue number 11. Therefore in my considered view the alleged infraction of the instructions issued by the Election Commission cannot materially affect the result of the election. ( 50 ) MUCH emphasis has been laid by the learned counsel appearing for the petitioner that if the margin is less than five cent of the total valid votes polled by all the candidates, the R. O. shall not declare the result of counting without the specific prior clear clearance of the commission and that Ex. A. 6 order is devoid of any valid reasons. Trust as can be seen from the instructions given to the by the Election Commission on counting of votes and declaration of results dated 16. 02. 1996 the R. O shall obtain the permission of the Election Commission. As can be seen from the Oral evidence on the point, the declaration in this case has not been made immediately after the counting process is completed. Even according to the election petitioner, the declaration was made on the midnight of 07. 10. 1999. 02. 1996 the R. O shall obtain the permission of the Election Commission. As can be seen from the Oral evidence on the point, the declaration in this case has not been made immediately after the counting process is completed. Even according to the election petitioner, the declaration was made on the midnight of 07. 10. 1999. This must have been obviously for the reasons that the R. O. should obtain the permission of the appropriate authority for declaring the result of the election, given the marginal difference in the lead in between the election petitioner and the first respondent. Official acts are presumed to have been discharged in accordance with the rules until and unless it is shown otherwise. There is no evidence on the side of the petitioner to show that the R. O. has not obtained the necessary permission of the Election Commissioner. ( 51 ) THE request of the election petitioner for recount has been rejected by the R. O. by his proceedings under Ex. A. 6. It is appropriate here to consider Exs. A. 5 and A. 6 keeping them in juxtaposition. The only ground mentioned inter alia in Ex. A-5 is the alleged doubt of the Petitioner on the integrity of the ARO who is closely related to TDP persons who might have committed mischief in twisting the particulars gathered by the petitioner from his agents. The petitioner has not pointed out any of the irregularities said to have been committed in the process of counting by the counting staff or about the unauthorised interference of the persons other than the counting staff therein. The whole basis for the request for recounting appears to be the information furnished by the counting agents of the petitioner and the divergence alleged in between that information and the particulars furnished by the A. R. O. Well, it is not the case of the petitioner that he has not furnished full details in Ex. A. 5 on account of any pressure, paucity of time and other plausible reasons. As can be seen from Ex. A. 5 on account of any pressure, paucity of time and other plausible reasons. As can be seen from Ex. A. 6 the reason that has been assigned for rejecting the request of the petitioner appears to be that from the beginning of the detailed counting the consent of the counting agents of the candidates has been given at the end of every round which showed that the counting has been done satisfactorily; and that during the entire process of counting neither the petitioner nor his counting agents never raised any objection about any mischief or irregularities in the counting and as the detailed counting of votes clearly reflects the trend of close contest between the candidates and the staff has taken utmost care and attention; and that since the randomization of counting staff has also followed, the request for recounting being general and not specific cannot be accepted. Therefore the contention that Ex. A 6 is devoid of any reasons merits no consideration. ( 52 ) TURNING to the law on the point, reliance has been so that to be placed on he argument of the Apex Court in Colgate Palmolive (India) Ltd. V. Hindustan Lever Ltd. ( (1999) 7 SCC 1 ) wherein the Apex Court held that prima facie case means and arguable case resulting in establishing of a prima facie case. Mere allegations, which are devoid of particulars and unsupported by the evidence in proof thereof not to the extent of degree required at a regular enquiry but for a prima facie consideration cannot constitute an arguable case. There must be some substance in the allegation to be argued at the time of the regular enquiry and that substance is supported by some evidence. ( 53 ) IN Preet Mohinder Singh V. Kirpal Singh (2001 AIR SCW 2320) The Apex Court held thus:"a bare reading of the above averments shows that these paragraphs contain nothing but bald allegations. No facts, much less material facts and particulars have been furnished. The averments to the effect that the presiding officer had illegally rejected 57 votes where in fact these were only 37 votes of such nature, is a hopelessly vague and bald allegation. Leaving aside the question whether the figure as mentioned above is true or imaginary, the basis on which this figure had been arrived at has not been disclosed in the election petition. Leaving aside the question whether the figure as mentioned above is true or imaginary, the basis on which this figure had been arrived at has not been disclosed in the election petition. No particulars at all have been furnished of allegedly wrongfully rejected votes as mentioned in Paragraphs 11 and 13. Same is the position with regard on the allegations contained in other paragraphs. The pleadings on this aspect are hopelessly vague. Neither material facts nor material particulars have been furnished. In the absence of material particulars which are sine qua non for letting an election petition to trial, the tribunal was not justified in order a recount in a rather mechanical manner. The Courts have always opined that Mere allegations not supported by material facts, do not give rise to a triable issue particularly where the allegations are made to seek recounting of votes. Secrecy of ballot cannot be lightly impinged upon. " ( 54 ) THE Apex Court was categorical that the allegation must be supported by material facts and particulars when it can be said that there has been a triable issue. In Ramsewak V. H. K. Kidwal AIR 1964 SC 1249 , a Constitution bench held thus:"an order for inspection may not be granted as a matter of course, having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled, namely (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case, and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. But an order for inspection of a ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision, supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interest of justice require, be granted. The case of the petitioner must be set out with precision, supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interest of justice require, be granted. But a mere allegation that the petitioner suspects or believes that the has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. ( 55 ) IN P. H. Pujar V. Kanthi Rajashekhar Kidiyappa And Others ( (2001) 6 SCC 558 ) the Apex Court held thus:"the re-count of votes cannot be ordered in a casual manner. It cannot be ordered because the margin of defeat is meager. For seeking re-count, proper foundation is to be laid in the pleadings by setting out material facts and later proving it by adducing requisite evidence. The re-count cannot be ordered on the ipse dixit of the election petitioner. It can be ordered in rare cases where specific allegations are made and proved so as to do complete justice between the parties. " ( 56 ) IN Mahendra Pal V. Ram Dass Malanger And Others ( (2002) 3 SCC 457 ) according to the appellant secured 11,657 votes and the first respondent secured 11,660 votes and, therefore, the first respondent was declared elected by a margin of 3 votes. It was alleged that the said election result was vitiated because of improper reception of invalid votes in favour of the first respondent and improper rejection of valid votes in favour of the appellant. It was also contended that many irregularities were committed during the course of counting which had materially affected the result of election. Under those circumstances it was held thus:in view of the aforesaid discussion, as the appellant has not led any evidence or laid foundation stating that there was improper reception of votes in favour of the respondent or improper rejection of any votes which were in his favour, and that he has not raised any objection at the time of counting of votes on the basis of the so-called excess of 8 ballot papers, the High Court rightly refused re-counting of votes. The discrepancy of 8 ballot papers could be attributed to accidental slip or clerical or arithmetical mistakes which might have been committed at the time of preparation of the statements in Forms 16 and 20. The discrepancy of 8 ballot papers could be attributed to accidental slip or clerical or arithmetical mistakes which might have been committed at the time of preparation of the statements in Forms 16 and 20. " ( 57 ) IN P. H. Pujar V. Kanthi Rajasekar Kidiyappa And Others ( (2002) 3 SCC 742 according to the facts in the election for Legislative Assembly the total votes polled were 88,353 and at the final counting it was found that the respondent-election petitioner 40,280 votes whereas the appellant (returned candidate) secured 40,418 votes and the ballot papers rejected as invalid were 3,872. Thus the appellant was declared elected by a margin of 138 votes. In the election petition it was alleged that the election of the appellant was void on the grounds of improper reception, refusal or rejection of the votes as also for non-compliance with Sections 100 (1) (d) (iii) and (iv) of the Representation of the People Act, 1951 and the Rules and orders made under the Act. In the election Petition except making a general and vague averment that the R. O. refused to follow the mandatory provision of law in relation to the counting, the election petitioner has failed to plead any material fact whatsoever. There was no allegation about the non-filing of the check memos by the Counting Supervisors or its effect. It had not been stated, how and which mandatory provision of law of counting was not followed by the R. O. The High Court, while setting aside the election of the appellant and declaring it void, directed the R. O. to re-count the ballot papers after properly scrutinizing the same and to declare the result of the election by following the provisions of the law. In the appeal filed by the returned candidate, initially the Apex Court directed that for the present only 3,872 ballot papers be re-counted after proper scrutiny. The re-count had been conducted by the Registrar (Judicial) of the High Court who submitted a report. From the report, it appeared that as a result of the re-count, the margin of victory of the appellant would only stand reduced to 60 which would have no material bearing on the result of the election. The grievance of the election petitioner was that the margin of defeat being small, the "disputed votes" be re-examined. From the report, it appeared that as a result of the re-count, the margin of victory of the appellant would only stand reduced to 60 which would have no material bearing on the result of the election. The grievance of the election petitioner was that the margin of defeat being small, the "disputed votes" be re-examined. The thrust of the election petitioner was about illegality committed in respect of rejected ballot papers. The Judgment of the High Court is set aside and the election petition is dismissed. While doing so, the Apex Court held thus:"re-count of votes cannot be ordered in a casual manner. It cannot be ordered because the margin of defeat is meager. For seeking re-count, proper foundation is to be laid in the pleadings by setting out material facts and later proving it by adducing requisite evidence. The re-count cannot be ordered on the ipse dixit of the election petitioner. It can be ordered in rare cases where specific allegations are made and proved so as to do complete justice between the parties ( 58 ) THE only ground on which the re-count was sought and was allowed by the High Court was the non-filling of the check memos by the said Counting Supervisors and directions given in that behalf to the said Supervisors by the Returning Officer - an aspect in respect whereof there are no pleadings and no material facts. Therefore, the High Court was clearly in error in directing the re-count of the entire assembly votes and in setting aside of the election of the petitioner simultaneously even before the start of the re-count. " ( 59 ) IN Vadivelu V. Sundaram (2000 AIR SCW 3664) it was held thus:"recount of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If the Court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in count. If the Court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in count. But if it is proved that purity of election has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties. " ( 60 ) IN Hari Shanker Jain V. Sonia Gandhi ( (2001) 8 SCC 233 ) the expressions material facts" and "cause of action" have been sought to be elucidated in para 23 thus:"section 83 (1) (a) of Representation of People Act, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. The material fact required to be stated as those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression "cause of action" has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time limit prescribed for filing the election petition. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time limit prescribed for filing the election petition. " ( 61 ) HAVING understood the law thus as enunciated by the Apex Court in many a Judgment and in view of the findings on all the issues I have no hesitation to hold that the petitioner failed to establish his case even by prima-facie evidence. Therefore, the petition filed by the election petitioner requesting for recount has rightly been rejected by the R. O. Under Ex. A. 6-order. For the foregoing reasons, the request of the petitioner for recount cannot be considered. Well, once the request of the petitioner for recounting cannot be considered for want off prima facie evidence, there is nothing to interfere with the declaration of result made by the R. O. in favour of the first respondent. In the result, the election petition must fail and is accordingly dismissed with costs. The Advocate's fee is fixed at Rs. 2,500/- (Rupees two thousand and five hundred ).