judgment REBELLO F.I., J.:---The petitioner had contested from Constituency No. 221, the Barshi Assembly Constituency in Solapur District, State of Maharashtra to the elections held for State Legislative Assembly of the State of Maharashtra on 5th September, 1999 and of which the results were declared on 7th October, 1999. The petitioner contested the election as the candidate of a recognized political party (Shiv Sena). The respondent No. 1 contested the elections from the said Assembly Constituency as a candidate of Nationalist Congress Party and secured 47.527 votes. There were some other candidates. It is not necessary to advert to them or the votes that were secured as that since really does not arise. The respondent No. 1 secured a lead of 339 votes against the petitioner and was declared elected. In paragraph five of the petition the petitioner has pleaded that the election of the 1st respondent is liable to be set aside under section 100(1)(d)(iii) and 100(1)(d)(iv) of the Representation of Peoples Act, 1951. Section 100(1)(d)(iv) provides that the election of a returned candidate can be declared to be void if there is any non-compliance with the provisions of the Constitution or the Act or of any Rules or Orders made under the Representation of the People Act, 1951 (hereinafter referred to as the Act). Under section 100(1)(d)(iii) the election of a returned candidate is to be declared void on account of the improper reception, refusal or rejection of any vote or the reception of any vote which is void. The case of the petitioner as averred in paragraph six of the petition was that one Mr. Waghmare was the Returning Officer and Laxman Gunje was the Assistant Returning Officer. Laxman Gunje was appointed as Tahsildar on 1st April, 1996 and had been given additional charge as Chief Officer of Barshi Municipal Council from 31st January, 1998 to 27th June, 1998. Mr. Gunjes son Satish was appointed as a Clerk by the 1st respondent in the District Central Co-operative Bank, Solapur of which the 1st respondent was the Chairman. The petitioners case is that as a consequence of this while discharging duties as Chief Officer of the Barshi Municipal Council the Assistant Returning Officer Mr. Gunje was totally under the control of the 1st respondent. The petitioners case is that as a consequence of this while discharging duties as Chief Officer of the Barshi Municipal Council the Assistant Returning Officer Mr. Gunje was totally under the control of the 1st respondent. In 1996 when the elections were conducted to the Barshi Municipal Council the 1st respondent and his supporters had contested the elections in the name and style of Lokseva Sangh. Shri Nagesh Baban Nanajkar and Mr. Rajendra Rasal had contested the elections as a candidate of the Lokseva Sangh. Nagesh and Rasal had been convicted by the Additional Sessions Judge in Sessions Case No. 10 of 1986 and consequently their nomination papers were challenged by the candidates contesting the said Municipal Elections. Gunje in order to oblige the 1st respondent had over-ruled the objections and held that the two nominations to be valid. After the declaration of the results the election of Nanajkar and Rasal were challenged and their elections were set aside. It is also pointed out that on account of high handed action of Laxman Gunje the petitioner had gone on a fast unto death and as a consequence thereof Gunje was removed as Chief Officer of the Barshi Municipal Council. As the petitioner apprehended that Gunje would favour the 1st respondent he had addressed letters to the Election Commissioner not to permit Gunje to take part in the counting at the said elections in his capacity as the Assistant Returning Officer. Reliance is placed on letter dated 4th October, 1999. Inspite of that Gunje was allowed to participate. On account of this participation and bias disclosed by Gunje against the petitioner various illegalities were committed which materially affected the results of the elections. The petition in paragraphs 9 to 16 deal with postal ballot papers. Various averments are made of the purported illegalities which will be adverted to later. It is also pointed out that 1199 postal ballot papers were not accompanied by duly and completely filled up declarations in Form 13-A with Form 13-B and 13-C. Surprisingly large number of ballot papers of the declaration forms in Form 13-A were found at the residence of the Assistant Returning Officer Mr. Madan Vyakule. The police had raided the house of Vyakule on 8th October, 1999 and seized postal ballot papers, Form 13-A and other election material. Panchanama was also recorded. Madan Vyakule. The police had raided the house of Vyakule on 8th October, 1999 and seized postal ballot papers, Form 13-A and other election material. Panchanama was also recorded. For the reasons stated in the said paragraph, it is stated that all the 1160 ballot papers be rejected to ignored for the reasons set out therein. There are also some other averments in respect of the postal ballot papers. It is also contended on behalf of the petitioner that apart from the above mentioned mischief regarding postal ballot papers played by the 1st respondent in collusion with the Returning Officer and his subordinates, there were other mischiefs played by the Returning Officer and his subordinates in collusion with the 1st respondent. It is pointed out that on table No. 1, table No. 4, table No. 7, table No. 8 and table No. 9 valid votes cast in favour of the petitioner were counted in favour of the respondent No. 1 though objections were raised by the counting agent of the petitioner sitting on those tables. It is contended that about 1200 valid votes cast in favour of the petitioner were counted in favour of the respondent No. 1. It is then set out that on 7th October, 1999 at about 3.35 p.m. the petitioner had made an application for recount of votes. That was rejected by the Returning Officer. The Returning Officer ordered that only invalid votes would be recounted, but did not give any reason for refusing full recount of all the votes. The application, it was contended, was with the Returning Officer and the petitioner sought to rely upon the same. It is the case of the petitioner that for the reasons set out and/or disclosed that the Returning Officer ought to have granted the application of the petitioner for recount. No reasons were assigned by the Returning Officer for rejecting the petitioners application for a total recount. It is, therefore, prayed that the order for recount may be made by this Court. At any rate 1200 votes cast in favour of the petitioner and which have been wrongly counted in favour of the respondent No. 1 be deducted from the total number of votes cast in favour of the respondent No. 1 and added to the votes cast by the petitioner. At any rate 1200 votes cast in favour of the petitioner and which have been wrongly counted in favour of the respondent No. 1 be deducted from the total number of votes cast in favour of the respondent No. 1 and added to the votes cast by the petitioner. The petitioner is entitled to be declared elected even if 1162 ballot papers are taken into account. It is, therefore, submitted that the result of the election in so far as it consists of 1st respondent, the returned candidate, has been materially affected by improper reception of postal ballot papers. Similarly, the results of the election were materially affected due to the counting of 1200 valid votes of the petitioner in favour of the 1st respondent. It is for these reasons that the election is liable to be declared void under the provisions of the Act referred to earlier. Hence the reliefs as prayed for. 2. The respondent No. 1 has filed his written statement. It is firstly contended that the election petition is liable to be dismissed for non-compliance with the provisions of section 117 of the Representation of People Act, 1959 read with section 25 of the Rules framed by the High Court of Judicature at Bombay. In regard to the election petitions under the Representation of People Act, 1951 the contention is that the petitioner did not deposit within 45 days the security deposit of Rs. 2000/- in cash which is mandatory. It is further set out that the copy of the election petition served on the respondent No. 1 is not a true copy contemplated under section 81 of the Act. The election petition is, therefore, liable to be dismissed at the threshold under section 86 of the Act. In the copy supplied there are illegible pages at 27 to 33 thereby causing great prejudice to the respondent No. 1 and as such the petitioner is not a true copy within the meaning of section 81(3) of the Act. The petition, therefore, also liable to be dismissed. Dealing with the various averments made in the paragraph 4 of the petition, it is set out that the allegations of corrupt practice do not set out the material facts and particulars relating to corrupt practice. On this ground also the petition is liable to be dismissed. The petition, therefore, also liable to be dismissed. Dealing with the various averments made in the paragraph 4 of the petition, it is set out that the allegations of corrupt practice do not set out the material facts and particulars relating to corrupt practice. On this ground also the petition is liable to be dismissed. The petition also has to be rejected as petition discloses no cause of action under Order VII, Rule 9 of the Code of Civil Procedure. The verification done is also not in accordance with the provisions of section 83(1)(c) and also not in conformity with Order VI, Rule 15 of C.P.C. Pointing out to various paragraphs in the petition it is pointed out that they could not be based on the petitioners knowledge. The verification is misleading and, therefore, the petition is liable to be rejected. There are some other objections regarding verification of the annexures. It is also pointed out that necessary parties are not joined to the election petition and as such it is not a petition contemplated under section 82 of the Act. The election petition also, it is contended, is not within the period of 45 days of declaration of the results. The respondents name was brought on record for the first time pursuant to the order dated 4th May, 2000 and on this count itself the petition is liable to be dismissed. The respondent thereafter has dealt with the various grounds and contentions raised in the pleadings of the petitioner and has denied the same. The allegations about Mr. Gunje have been denied. So also the pleadings regarding the postal ballot as also the pleadings pertaining to counting of ballot papers on various tables and also in the matter of recounting as prayed for by the petitioner. It is, therefore, submitted that the petition be dismissed. 3. The petition was assigned to this Court in August 2002. My learned predecessor had on 7th December, 2000 framed the issue to be decided. They are set out as under:--- 1. Whether the election petition is liable to be dismissed for non-compliance with the provisions of section 117 of the Representation of People Act, 1951 and Rule 25 of Bombay High Court Rules (O.S.) in relation to election petition? 2. Whether the petitioner proves that all the 1199 postal ballot papers are liable to be treated a invalid votes? 3. Whether the election petition is liable to be dismissed for non-compliance with the provisions of section 117 of the Representation of People Act, 1951 and Rule 25 of Bombay High Court Rules (O.S.) in relation to election petition? 2. Whether the petitioner proves that all the 1199 postal ballot papers are liable to be treated a invalid votes? 3. Whether the election petitioner proves that he has made an application for recount of votes on 7th October, 1999 at 3.35 p.m. as stated by him in paragraph No. 22(g) of the election petition? 4. Whether the election petitioner proves that on table No. 1 the counting staff had counted 200 valid votes of the petitioner in favour of 1st respondent? 5. Whether the election petitioner proves that Mr. Rajendra Rasal was the counting agent of the 1st respondent on table No. 4 and that he had prevailed upon the concerned counting staff to count 350 valid votes of the petitioner in favour of the 1st respondent? 6. Whether the election petitioner proves that counting of votes on table No. 7 was pertaining to the Assembly Election of Barshi Constituency No. 221 and that 200 valid votes of the petitioner were counted by the concerned counting staff on table No. 7 in favour of 1st respondent? 7. Whether the election petitioner proves that counting of votes on table No. 8 was pertaining to the Assembly Election of Barshi Constituency No. 221 and that 300 valid votes of the petitioner were counted by the concerned counting staff on table No. 7 in favour of 1st respondent? 8. Whether the election petitioner proves that counting of votes on table No. 9 was pertaining to the Assembly Election of Barshi Constituency No. 221 and that 150 valid votes of the petitioner were counted by the concerned counting staff on table No. 7 in favour of 1st respondent? 9. Whether the election petitioner proves that 1200 valid votes of the petitioner were counted in favour of the 1st respondent? 10. Whether the election petitioner proves that the result of the election insofar as it concerns the 1st respondent has been materially affected by improper reception of postal ballot papers as stated in election petition? 11. 9. Whether the election petitioner proves that 1200 valid votes of the petitioner were counted in favour of the 1st respondent? 10. Whether the election petitioner proves that the result of the election insofar as it concerns the 1st respondent has been materially affected by improper reception of postal ballot papers as stated in election petition? 11. Whether the election petitioner proves that the result of the election petition is materially affected due to counting of 1200 valid votes of the petitioner in favour of the 1st respondent? 12. Whether the election of the 1st respondent is liable to be set aside under section 100(1)(d)(iii) and 100(1)(d)(iv) of the Representation of People, Act, 1951? 13. Whether the election petitioner is entitled for recount of all the votes secured by the candidates in Barshi Assembly Constituency No. 221, District Solapur held on 5-9-1999? 14. Whether the election petitioner proves that he is entitled to be declared elected to Maharashtra Legislative Assembly Constituency No. 221, District Solapur in place of 1st respondent? From the perusal of the issues it will be clear that Issue No. 1 pertains to failure to comply with the provisions of section 117 of the Act and Rule 25 of the High Court Rules (Original Side). Issue Nos. 4 to 8 pertain to counting on table Nos. 4, 7, 8 and 9 where the case of the petitioner is that the votes cast in his favour were wrongly counted in favour of the respondent No. 1. Issue Nos. 9, 10 and 11 are consequential to the findings to be given on Issue Nos. 4 to 8. There are other issues as may be seen from the issues framed. Inspite of attempts made to get the petition disposed of at the earliest it was not possible to do so as the matter was adjourned from the time to time at the request of the parties to enable the parties to record evidence. Thereafter oral submissions were heard. Parties have filed written submissions in January, 2003 which are on record. 3-A. Coming to the first issue of non-compliance of the provisions of section 117 of the Act and the Rules framed by this Court P.W. 1 has deposed that the petitioner has not deposited the amount in cash as required by the Rules. There is, however, cheque for Rs. 3-A. Coming to the first issue of non-compliance of the provisions of section 117 of the Act and the Rules framed by this Court P.W. 1 has deposed that the petitioner has not deposited the amount in cash as required by the Rules. There is, however, cheque for Rs. 2000/- issued by the Advocates for the petitioner within 45 days of filing of the petition. Shri U.G. Mukadam, Additional Prothonotary Senior Master was examined as R.W. 2. In his evidence he has stated that the cheque for Rs. 2,000/- was received on 29th October, 1999 in the Department from Advocates M/s. M.P. Vashi Associates. Entry of receipt of that cheque as received, was made in the register on 30th October, 1999. The cheque was accepted. The cheque was deposited. The challan for depositing the cheque was prepared on 30th October, 1999 and the cheque was deposited on 1st November, 1999 as 31st October, 1999 was a holiday. From the above it is clear that the Lawyers cheque was issued, received and it was deposited. In other words the amount became available within time. Once that be the case it cannot be said that considering section 117 of the Act that there has been a failure to comply with the mandate of that section and consequently the petition has to be rejected. The first issue has to be answered in the negative. 4. Before dealing with the postal ballot papers let us deal with the issue Nos. 4 to 11. The petitioner has examined himself as P.W. 1. He has deposed that on table No. 1 his counting agent was Datta More, who had protested to the Returning Officer that 200 valid votes cast in favour of the petitioner had been wrongly added to the figure of respondent No. 1. Inspite of the protest of the counting agent the protest was not heeded. On table No. 4 the counting agent for respondent No. 1 was Rajendra Rasal who prevailed on the staff at the counting table to add 350 valid votes cast in favour of the petitioner in favour of the respondent. The petitioners counting agent Rajendra Kakade had raised objection. However, the Returning Officer did not take any action in the matter. It is then set out that on table No. 7 his counting agent was one Mr. Vinayak Ghodake. The petitioners counting agent Rajendra Kakade had raised objection. However, the Returning Officer did not take any action in the matter. It is then set out that on table No. 7 his counting agent was one Mr. Vinayak Ghodake. It is his case that the counting staff wrongly added 200 valid votes of the petitioner in favour of the respondent No. 1. On table No. 8 it is the petitioners case that his counting agent was one Dashrath Jagtap and Mr. Nagesh Nanajkar a person having a criminal record was the counting agent of respondent No. 1, who threatened the counting staff and on account of that 300 valid votes cast in favour of the petitioner were wrongly counted in favour of the 1st respondent. On table No. 9 the counting agent was Mr. Deshmukh, 150 valid votes cast in favour of the petitioner were added in favour of the respondent No. 1. The case of the petitioner has been that his counting agents at that time of wrongly adding of the votes in favour of the respondent No. 1 had protested. The petitioner examined Ganesh Rajendra Shankar Kakade as his witness, P.W. 2. In his examination-in-chief he has set out that he had been assigned table No. 4. In the course of the first round there was no illegality. He has deposed that 350 votes cast in favour of the petitioner were wrongly counted in favour of the respondent No. 1. He had protested to the election officer on that day. There were illegalities in the next round. He had protested to the Eletoral Officer. In his cross-examination he has set out that the badge was given by the electoral officer which he used at the time of voting. The witness stated that when the card was first issued the number of the table was not put on it. The number was put only after entering the counting hall. The petitioner had to furnish details of names of those posted as counting agents and it is only after that the badge was given. He denied that he had given false evidence. He admits to be worker of the Shiv Sena party from the very beginning and had campaigned in the election for the petitioner. P.W. 3 is Dattatrya Maruti More. It is his case that he acted as counting agent on table No. 1. He denied that he had given false evidence. He admits to be worker of the Shiv Sena party from the very beginning and had campaigned in the election for the petitioner. P.W. 3 is Dattatrya Maruti More. It is his case that he acted as counting agent on table No. 1. In the course of counting, 200 votes cast in favour of the petitioner were wrongly counted in favour of respondent No. 1. Witness had protested to Mr. Waghmare, who informed him to intimate to the petitioner, which he accordingly did. The witness and the petitioner thereafter approached Waghmare, who did not consider the objection. In his cross-examination he has set out that the table number where he was to act as counting agent was given by Waghmare after he entered the counting hall. He was assigned table No. 2 and not table No. 1. He denied the suggestion that he deposed falsely. Vinayak Dhondiba Ghodake was examined as P.W. 4. It is his case that he was counting agent on table No. 7. In the process of counting 200, votes in the fourth round in favour of petitioner were wrongly added in favour of the respondent No. 1. He was in the counting hall where Shri Gunje was the Assistant Returning Officer. He had intimated this to the petitioner and accompanied the petitioner to Gunje to record objection. The objections were ignored. In cross-examination he deposes that when he entered the counting hall he was asked to go on table No. 7. The pass was taken back. The number of the badge of the table No. was put after he entered the counting hall. He denied that he was deposing false regarding the 200 votes and the complaint lodged with Returning Officer. Mr. Dasharath Ambadas Jagtap, P.W. 5 in his evidence deposed that he was counting agent for petitioner on table No. 8 and the counting gent for respondent No. 1 on that day was Mr. Nagesh Nanajkar. In the process of counting 300 votes which were cast in favour of the petitioner were added in favour of respondent No. 1. He had protested to the officer about the illegalities. They were not heeded and he was asked to inform the petitioner. In his cross-examination he states out that the number of the table was given to him after he entered the counting hall. He had protested to the officer about the illegalities. They were not heeded and he was asked to inform the petitioner. In his cross-examination he states out that the number of the table was given to him after he entered the counting hall. He denied that he was on table No. 13 and not on table No. 8. He also denied that he was deposing falsely about 300 votes which being wrongly counted. He denies that Gunje was not in the counting hall where table No. 8 was placed. P.W. 6 Jaysing Pandurang Deshmukh was deposed that he was counting agent on table No. 9. It is his case that during the course of counting about 150 votes spread over various rounds cast in favour of petitioner were wrongly counted in favour of respondent No. 1. He had protested about this illegality to Mr. Gunje. In cross-examination he has stated that number of the table where he was to act as counting agent was given after he entered the hall. He denied that the table No. 9 was allotted for counting Parliamentary votes. He denied that he had acted as counting agent for the petitioner on table No. 14 and not table No. 9. He denied that he has falsely deposed regarding wrong counting of 150 ballot papers. There are also other denials. These are the witnesses, who were examined on this specific ground. The witness Krishna Hariba Gaidhankar is examined as Production witness No. 1 to produce the various documents as set out in his evidence. He has produced the original documents/register showing the names and identities of counting agents of the petitioner and respondent No. 1 as also information regarding counting arrangements at the tables, the original map was produced and various other documents regarding the assignment of number and sitting arrangement for counting agents. Nivrutti Pundalik Waghmare has been examined as witness No. 7 by the petitioner. Though he was the Returning Officer for North Barsi 221 Assembly Constituency the petitioner from this witness has not brought out any aspect of allotment of table, sitting arrangements and the numbers given to the agents on which they ought to sit. In his cross-examination he has pointed out that the counting was done in two halls for Barshi Assembly Constituency. At the same time counting was also going on for the Parliamentary Constituency. Altogether there were 22 tables. In his cross-examination he has pointed out that the counting was done in two halls for Barshi Assembly Constituency. At the same time counting was also going on for the Parliamentary Constituency. Altogether there were 22 tables. 10 tables in each hall for counting and one table for the Returning Officer and Assistant Returning Officer. The table had numbers. In the badge issued to the counting agent the photo of the agent and the table number assigned were entered. A register is maintained to that effect which was produced and marked as Exhibit R-3. The letters sent to the candidates containing the name of the counting agent, number of the tables allotted to them for the first round for sorting ballot papers and next round for counting has been marked as Exhibit R-4, collectively. In his evidence he has set out that the polling agent had to sit on the table assigned to him and he could not change the table. No permission was also granted to any counting agent to change the table number. In the second round there were only 10 tables for counting of the votes for the Assembly Constituency five in each hall. He has deposed that the petitioners counting agents were as follows. On table No. 1 Gaikwad Lahu Bhanudas, on table No. 7 it was Mankudale Siddeshwar Uttam, on table No. 8 Sonawane Bhagwan Dhondiram and on table No. 9 Barangule Sudarshan Manik. This has been deposed according to the witness based on Exhibit R-4 collectively. He has further deposed that table Nos. 7, 8 and 9 were in the first round used for sorting. However, at the time of counting of votes the said table Nos. 7, 8 and 9 were allotted for counting Parliamentary ballots. An explanation was sought as to which table was allotted for sorting and for counting. He has deposed that table Nos. 1 to 5 and 11 to 15 were assigned for counting assembly ballots. In the course of counting neither the counting agent nor the petitioner made any complaint regarding counting of ballot papers on each table nor the petitioner or his counting agent approached him on the ground that their complaints were not being heard. Badges given to the agents, it is stated, were not taken back after counting was over. In the course of counting neither the counting agent nor the petitioner made any complaint regarding counting of ballot papers on each table nor the petitioner or his counting agent approached him on the ground that their complaints were not being heard. Badges given to the agents, it is stated, were not taken back after counting was over. This witness has not been re-examined regarding allotment of tables and the sitting arrangements nor his evidence that there is no complaint made to him by any of the counting agents of the petitioner controverted. However, in cross-examination he has explained that in the badge issued to the counting agent of the candidate, the photograph of the agent and table assigned were written on the same. 5. From his evidence what emerges is that on table No. 1 the counting agent for petitioner was Gaikwad Lahu Bhanudas. On table No. 4 the counting agent of respondent No. 1 was Nagnath Baban Nanajkar and on table No. 7 the counting agent of the petitioner was M.S. Uttam. on table No. 8 for the petitioner it was Sonawane Bhagwan Dhondiram and on table No. 9 was Barangule Sudarshan Manik. This witness ha deposed based on Exhibit R-4 collectively. He has further deposed that table Nos. 7, 8 and 9 were initially used for sorting. At the time of counting of votes the table Nos. 7, 8 and 9 were allotted for counting Parliamentary ballots. He has further stated that identity cards were issued on 1st October, 1999. He has further deposed based on Exhibit R-3 collectively that counting agent at Serial No. 1 was assigned the same number both for counting and sorting. Evidence of P.W. 2 G.R. Kakade that he had protested to the electorial officer on table No. 4 is not substantiated by any evidence. Witness No. 3 D.M. More claimed that he was counting agent for petitioner on table No. 1. The evidence of the Returning Officer P.W. 7, however, is that it was G.L. Bhanudas. Similarly, V.D. Ghadake had stated that he was counting agent on table No. 7 for the petitioner. The Returning Officer P.W. 7 based on documents sets out that it was M.S. Uttam. A.D. Jagtap has stated that he was counting agent on table No. 8. The Returning Officer P.W. 7 stated that it was S.B. Dhondiram. Similarly, V.D. Ghadake had stated that he was counting agent on table No. 7 for the petitioner. The Returning Officer P.W. 7 based on documents sets out that it was M.S. Uttam. A.D. Jagtap has stated that he was counting agent on table No. 8. The Returning Officer P.W. 7 stated that it was S.B. Dhondiram. J.P. Deshmukh has stated that he was counting agent on table No. 9. P.W. 7 Returning Officer has stated that for the petitioner on table No. 9 the counting agent was B.S. Manik. More importantly table Nos. 7, 8 and 9 were initially used for sorting and at the time of counting of votes table Nos. 7, 8 and 9 were allotted for counting Parliamentary ballots. Also on table No. 4 the counting agent of the respondent No. 1 was N.B. Nanajkar and not Rajendra Rasal as deposed by P.W. 2 Rajendra Kakade. Further nothing has come on record that any of the counting agents had protested in writing or for that matter the petitioner even at the stage of declaration of the results or soon thereafter had made any grievance of the matter to P.W. 7. P.W. 7 has denied that any objection was made to him. This is corroborated by the documentary evidence on record namely Exhibit ""R-2"" Colly, where no such objection was taken whilst applying for recount of votes. There is some reference in Exhibit P-10 to that effect, but the witness has deposed that he had not received P-10. The petitioner has not led any evidence to prove that P-10 was handed over to P.W. 7. It is, therefore, not possible to accept the evidence of these witnesses who, it is clear, have deposed falsely before the Court. This would be elaborated further in the course of discussing Issue No. 3. Once that be the case Issue Nos. 4 to 10 have to be answered against the petitioner. As Issue No. 4 to 10 are answered against petitioner consequently Issue No. 11 also will have to be answered against the petitioners as it would only have arisen if Issue Nos. 4 to 10 had been answered in favour of the petitioner. 6. 4 to 10 have to be answered against the petitioner. As Issue No. 4 to 10 are answered against petitioner consequently Issue No. 11 also will have to be answered against the petitioners as it would only have arisen if Issue Nos. 4 to 10 had been answered in favour of the petitioner. 6. We now come to Issue No. 3, whether the petitioner proves that he has made an application for recount of votes on 7th October, 1999 at 3.35 p.m. as stated by him in paragraph 22(g) of the election petition. In paragraph 22(g) what the petitioner has set out was that after the election was declared on 7th October, 1999 at about 3.35 p.m. the petitioner had made an application for recounting of votes. However, the said application was rejected by the Returning Officer by making an order on the recount application itself. The petitioner does not have a copy of the said application. However, the petitioner has an acknowledgement signed by the Returning Officer for having received the recount application. The petitioner craved leave to refer to and rely upon the said acknowledgement. To narrow down the controversy the averments in paragraph 22(h) may also be noted. Therein the petitioner had set out that the Returning Officer had passed an order on the recount application given by the petitioner to the effect that only invalid votes will be counted. However, no reasons were given for refusing to recount all the votes. It is the contention of the petitioner that the recounting of invalid votes was and is of no consequence and the order passed by the Returning Officer is totally perverse. In so far as the respondent is concerned in answer to paragraph 22(g) in paragraph 36 it is set out that there was an application by the petitioner for recounting of the votes on the ground that margin between the elected candidate and him was less. The respondent No. 1 herein had objected to the said application. The Returning Officer partly allowed the application and ordered recount of 3773 invalid votes. The application, it is contended, was moved at 3.35 a.m. (morning) and not at 3.35 p.m. as pleaded in the petition. The respondent No. 1 herein had objected to the said application. The Returning Officer partly allowed the application and ordered recount of 3773 invalid votes. The application, it is contended, was moved at 3.35 a.m. (morning) and not at 3.35 p.m. as pleaded in the petition. In answer to paragraph 22(h) it is the contention of the respondent No. 1 that the petitioner had made out no case for recount and consequently even the order directing recount partially ought not to have been made. We now come to the evidence recorded on that count. The petitioner in his evidence has set out that on 7th October, 1999 he had handed over an application Exhibit P-10 at 7.10 a.m. which version was later corrected to 7.20 a.m. The said application was written by his friend as per his instructions and bears his signature. The said friend has not been examined as a witness. It is his case that the Returning Officer Mr. Waghmare returned Exhibit P-10 to him on the ground that he was making baseless allegations and directed him to make fresh application. Shri Waghmare P.W. 7 was shown a document which was marked as R-2 collectively. He has stated therein that he received from the petitioner the application on 7th October, 1999 at 3.35 a.m. and he has endorsed his signature on the said application. The translation furnished of the said application on behalf of the respondent No. 1 the material portion reads as under:--- ""In the counting of votes held today i.e. 6-10-1999, the difference of votes for getting elected is marginal. You are, therefore, requested to recount the votes polled in 221 Barshi Legislative Assembly Constituency."" There is an acknowledgement of the Returning Officer on Exhibit R-2 that the said application was received on 7th October, 1999 at 3.35 a.m. in the morning. The Returning Officer on that very day after considering the application passed an order that no complaint in the matter of counting was received by him from any persons. On the contrary they have signed the relevant form that they do not have any complaint about the counting process. On completion of 22 rounds of counting he had declared votes polled and also invalid votes. On the contrary they have signed the relevant form that they do not have any complaint about the counting process. On completion of 22 rounds of counting he had declared votes polled and also invalid votes. A break was taken during which break the petitioner filed the application referred to earliest on the ground that the respondent No. 1 was getting elected by a small margin of votes. The Returning Officer also referred to the counter reply by the respondent No. 1 given on the same day morning that the said counting agents had given in writing that there were no complaints about counting process and as such there ought to be no order for fresh counting. The order notes that after having considered this stand of both parties the Returning Officer found that the petitioner has given no reasons in his application for recount nor produced any cogent proof in support thereof, however, considering the difference was small ordered recounting with regard to the invalid votes which numbered 3373. From this evidence what emerges is that the petitioner has been unable to prove that Exhibit P-10 in fact was tendered by him. What stands proved is that the application forming part of Exhibit R-2 collectively was received by the Returning Officer and he had made endorsement thereto. What is relevant in his application is that the petitioner had made no grievance about the counting process. This would be sufficient to reject the oral testimony of the witnesses examined on behalf of the petitioner that in the course of the counting process, votes cast in favour of the petitioner were counted as votes cast in favour of the respondent No. 1. At any rate in my opinion though the issue was framed all that emerges from that issue is that recount was sought only on the ground that there was a small margin of votes. No case has been made out that after or in the course of counting the petitioner complained to the Returning Officer that there had been illegalities in the counting process. It is in the these set of circumstances, that the Returning Officer took the decision. Therefore, all that is proved is that an application Exhibit R-2 collectively for recount was made by the petitioner. That issue will have, therefore, to be answered in the affirmative. It is in the these set of circumstances, that the Returning Officer took the decision. Therefore, all that is proved is that an application Exhibit R-2 collectively for recount was made by the petitioner. That issue will have, therefore, to be answered in the affirmative. However, nothing will really turn in answer to the said issue unless the petitioner makes out a case independently for recount of the votes. 7. That leaves us with the last material issue which is whether the petitioner proves that all the 1199 postal ballot papers are liable to be treated as invalid votes. For that purpose it would be first necessary to look at the pleadings in the petition in support of that issue. As noted in the earlier part of this judgment the case of the petitioner is that one Mr. Laxman Gunje, Assistant Returning Officer was inclined to help the respondent No. 1. There is no averment of bias at least on the part of Waghmare, the Returning Officer for the said Assembly Constituency. The averments now regarding postal ballot papers can be summed up thus. The Returning Officer under certificate of posting has to send the postal ballot papers to an elector along with declaration in Form 13-A, a cover in Form 13-B, and a large cover addressed to the Returning Officer in Form 13-C and instructions for the guidance of the elector in Form 13-D. Considering Rule 24, a voter who has received a postal ballot paper and desirous to vote is required to mark his vote on the said ballot paper. The ballot paper has to be enclosed in the cover Form 13-B. Apart from that a voter is required to sign a declaration Form 13-A and have the signature attested by Stipendiary Magistrate or such other officer as specified. The Returning Officer in turn has to maintain the register showing number of postal ballot papers sent under certificate of posting and total number of ballot papers received back after the voter has exercised his voting right. The averment is that the Returning Officer at the behest of Laxman Gunje, Assistant Returning Officer had maintained two registers where the record of the postal ballot papers is received. Reference is made to the registers. It is contended that exact number of postal ballot papers received back do not tally. The averment is that the Returning Officer at the behest of Laxman Gunje, Assistant Returning Officer had maintained two registers where the record of the postal ballot papers is received. Reference is made to the registers. It is contended that exact number of postal ballot papers received back do not tally. It is then averred that after the election i.e. on 10th October, 1999 an application was made to the Returning Officer to disclose how many ballot papers were forwarded by the Returning Officer under certificate of posting and some other averments which need not be adverted to except to set out that the Tahsildar, Barshi had endorsed on the petitioner's application that there is no record showing the details sought by the petitioner. The case of the petitioner is that the Returning Officer informed him that there were in all 1199 postal ballot papers received out of which 1160 were treated as valid ones. Relying on Exhibits ""A"" and ""B"" to the petition it is pointed out that the total ballot papers received are shown as 1194 and 1199 respectively. Paragraph 14 deals with so called discrepancies in the receipt and recording of postal ballot papers. Para 15 deals with some other discrepancies. There are some other averments made about ink mark, but that need not be dealt with as neither an issue of tampering has been framed nor any evidence on that count has been led. However, what is pointed out further is that 1199 postal ballots were not accompanied by duly filled up declaration in Form 13-A i.e. either Form 13-A do not have name of the voter who has given his name by postal ballot or the same was not attested by nominated officer or the same were not as per instructions. In the postal ballots polled the petitioner is shown to have received 350 votes and the respondent No. 1 has receive 795 votes. The respondent No. 2 had received 15 votes and 39 postal ballot papers were treated as invalid. The further requirement is that after counting was over the Returning Officer was required to seal the postal ballot papers received with Form No. 13-A in cover Nos. 13-B and 13-C. It is set out that surprisingly the papers were found at the residence of the Additional Assistant Returning Officer Mr. Madan Vyakule. The further requirement is that after counting was over the Returning Officer was required to seal the postal ballot papers received with Form No. 13-A in cover Nos. 13-B and 13-C. It is set out that surprisingly the papers were found at the residence of the Additional Assistant Returning Officer Mr. Madan Vyakule. The police had raised the house of Vyakule on 8th October, 1999 and had seized the postal ballot papers, Form 13-A and other election material. A panchanama was also made. It is on this basis that it is pleaded that the ballot papers numbers 1160 ought to have been rejected and/or ignored as the declaration in Form 13-A were not properly filled up and/or were not properly decided and were not as per the instructions in Form 13-D. There is a further averment that when the invalid postal ballot papers were treated as valid postal ballot papers the petitioner had lodged his complaint. The Returning Officer had taken his signature on a loose sheet of paper dated 6th October, 1999 with the request to sign the same. The petitioner and other candidates had signed the said loose sheet. It is specifically averred that later on the Returning Officer had added two sentences to the effect that nobody had any objections. We will deal with this aspect later on. There are further averments that 37 postal ballot papers were rejected at initial stage and thereafter two more. This is the sum and substance of the pleadings before this Court under which the petitioner wants this Court to reject the said postal ballot papers. We will also examine the contemporaneous documentary evidence which is on record coupled with the oral evidence to find out as to whether the petitioner has made out any case for this Court to hold that the said ballot papers ought to be rejected, more so considering that the margin of victory is based on the outcome of the postal ballot papers counted in favour of the respective candidates. Briefly the contention of the respondent No. 1 in so far as these averments are concerned may be now considered as set out in his written statement. It is pointed out that the Collector of Osmanabad was the District Election Officer who has supervised and regulated the election process through the Returning Officer and the Assistant Returning Officer and other staff appointed by the election commission. It is pointed out that the Collector of Osmanabad was the District Election Officer who has supervised and regulated the election process through the Returning Officer and the Assistant Returning Officer and other staff appointed by the election commission. The counting staff at the disposal of these officers was from Tuljapur Taluka, District Osmanabad. Two observations were also sent by the Chief Election Commission to monitor and supervise the conduct of the election. It is averred that observers were also supervising and monitoring the election process right from the beginning of the election till the end. There are then averments as to the maintenance of the register of postal ballots. The petitioner has been put to strict proof thereof. It is further averred that at the time of counting of the postal ballots the petitioner was present and the petitioner as well as other persons present had specifically recorded before the Returning Officer that they have no complaint regarding the counting of the postal ballot papers. The petitioner if he had any doubt in mind regarding counting of postal ballot papers ought to have exercised his rights under Rule 63 of the Rules. Next reference is made to Exhibit R-2 which was the application for recount and it is pointed out that what was set out in the application was only that there was small margin between the petitioner and respondent No. 1. Regarding the raid by the police in the house of Vaykule on 8th October, 1999 and the alleged seizure of ballot papers the respondent No. 1 has stated that he is not aware of the same. It is pointed out that the allegations are vague and general. No cause has been made out of breach of any Rules or any illegalities and in the light of that the case as made out by the petitioner herein should not be accepted. The petitioner P.W. 1 in his evidence has set out that after the counting was over all election material regarding postal ballot paper were found at the residence of Mr. Madan Vaykule. When the raid was conducted the documents were seized and at that time it was found that details as were required in form 13-A had not been filled in and had been completed in the house of Madan Vyakule. Madan Vaykule. When the raid was conducted the documents were seized and at that time it was found that details as were required in form 13-A had not been filled in and had been completed in the house of Madan Vyakule. It is the case that some of the forms under 13-A have the signature of competent authority and in others there were incomplete information. It is then set out that though counting of votes look place at Osmanabad ballot papers were found at the house of Vayakule at Barshi. It is averred that Vayakule did this on the orders of Mr. Gunje to assist the respondent No. 1. The petitioner has deposed that he was present when the police raided the house of Vaykule. He relied on Exhibit P-6 which is a document after completion of the election, enquiring whether entries in respect of postal ballot papers sent to the voters were maintained. It is his case that he has not received any reply. He relied upon Exhibit P-7 which is the extract maintained on the register of postal ballot papers received back along with English Translation. The extract of second register has also been received and marked as Exhibit P-8. It is his case that two registers were maintained by Mr. Gunje and Waghmare for the purpose of aiding respondent No. 1. The witness has deposed that signatures of Waghmare are present on one register and is absent on the other. It is then averred that 335 ballot papers were received on 15th September, 1999. The witness deposed that these ballot papers were collected by respondent No. 1 from the Government Employees and he posted them from Kore Ves Post Office. At this stage it may be mentioned that this allegation that the respondent No. 1 had collected postal ballot papers from Government Employees and posted them does not find place in the pleadings in the election petition and further no voter, who cast vote by postal ballot has been examined in support of this allegation nor any other independent witness. It is further the petitioner's case that Exhibit P-11 is the writing which was prepared and his signature was recorded, however, additions were made on the same by the Returning Officer Waghmar. It may be necessary to refer to this document as it pertains to the counting of postal ballot papers. It is further the petitioner's case that Exhibit P-11 is the writing which was prepared and his signature was recorded, however, additions were made on the same by the Returning Officer Waghmar. It may be necessary to refer to this document as it pertains to the counting of postal ballot papers. The case of the petitioner is that his signature is at point ""X"" which is marked in Red. Above that there is a portion bracketed in Red. According to the witness this portion was written by Waghmare after his signature was taken. The translation of the document on record sets out that representatives of the candidates were present for the counting of postal votes and they were shown the entries made in the register regarding receipt of total 1199 envelopes received after casting of votes and it further showed that 377 envelopes were returned. The envelopes were opened for preliminary round of counting. Then the forms therein and envelopes containing ballot papers were separated. Thereafter ballot papers were bundled into bundle of 25 papers each. In all 1162 bundles of postal ballot papers were received. 37 postal ballot papers were cancelled. The total number of votes is shown. There is an endorsement that the postal ballot papers were counted in their presence and there is no complaint of any kind about the same. The signatories amongst others includes the petitioner at Serial No. 3 and respondent No. 1 at Serial No. 6. In Exhibit R-2 collectively also which is already on record we have noted that there were no allegations about any illegalities in the counting of postal ballots or otherwise. These are two contemporaneous documents on record. With specific reference to Exhibit P-7 the witness has deposited that the register is only about envelopes containing polled votes. The witness agrees that in Exhibit P-7 at Serial No. 31 shows that total postal votes polled as 1194 and total number of envelopes returned back as 376. Regarding his deposition of alterations he explains that is in respect of undelivered envelopes. The witness was specifically asked about the posting by respondent No. 1 of 335 postal ballot on 15th September, 1999. To the question that there is no entry at Koreves Post Office about posting 335 postal ballots on 15th September, 1999 the witness states that there are such entries. The witness was specifically asked about the posting by respondent No. 1 of 335 postal ballot on 15th September, 1999. To the question that there is no entry at Koreves Post Office about posting 335 postal ballots on 15th September, 1999 the witness states that there are such entries. It may be mentioned at this stage that no witness was examined in support of this contention that 335 postal ballots were posted from Koreves Post Office on 15th September, 1999. The petitioner, however, admits that there is nothing in the petition about such entries maintained in Koreves Post Office. Various other suggestions put have been denied. Let us now examine the evidence of the Returning Officer Mr. Waghmare and whether it supports the case as made out by the petitioner. It may be mentioned at this stage itself that no application was made to this Court for recording evidence about the postal ballot papers nor any witness examined on that count except the Returning Officer. It may further be mentioned that though it is the case of the petitioner that the election material including postal ballot papers were seized at the house of Waghmare and also Form No. 13-A. That material is not enlisted as evidence before this Court. Reliance is placed on a panchnama which will be adverted to in the course of further discussion. Waghmare, the Returning Officer, in his evidence has stated that the custody of the register of postal ballots for the assembly elections was with the Tahsildar, Barshi/A.R.O. The production witness No. 1 is Mr. Krishna Hariba Gaidhankar and he has clarified that the register of postal ballot papers sent is the same. He affirms that Exhibit P-7 shown is a certified xerox copy from the original register showing the number of postal ballots posted to the voters. When his attention was drawn to the register it is pointed out that is in respect of other correspondence and those which were not ballot papers. He has explained in the manner in which is signatures were appended on the registers. The witness then to a Court question has explained the procedure of receiving ballot papers. He has deposed that there is a box maintained in the Tahsildar's office where the voters can deposit the postal ballots. Also postal ballots are received from the post office. After counting entry used to be made in the register. The witness then to a Court question has explained the procedure of receiving ballot papers. He has deposed that there is a box maintained in the Tahsildar's office where the voters can deposit the postal ballots. Also postal ballots are received from the post office. After counting entry used to be made in the register. The sealed ballot papers were then put in a trunk which was then sealed. The trunk was kept in strong room similar procedure is followed till the last date of receipt of ballot papers. In the box the ballot papers received in the particular date are tagged together and the date is put on the bundle. The witness has tried to explain about the five additional ballot papers which were received. Explanation in respect of Exhibit R-11 was sough and the witness explained that out of 37 postal ballot papers were cancelled whereas in Exhibit P-2 the number of rejected votes is shown as only 2 and 35 envelopes contained ballot papers which were of the parliamentary constituency. Thus the total figure arrived at was 37. In respect of the postal ballots this witness has explained that the postal ballot papers were printed locally by the Collector. The witness further sets out that on 21st August, 1999 he wrote to the Collector setting out the number of postal ballot papers. They were (1) Armed Forces 576 and (2) Appointed Electoral Staff 1680 total 2156. The witness has explained that there was a mistake in totaling and it ought to be 2256. From this it is pointed out that 576 postal ballots were posted to member of the armed forces and 1458 the Government employees involved in election duty. The witness has then set out that though he was the Returning Officer for the Barshi Assembly Constituency, the Collector who is the Chief Election Officer for the District had directed the District Entertainment Duty Officer by his order dated 21st July, 1999 to post the ballot papers of Sainiks. In cross-examination this witness has deposed that he has personally examined all 1199 declarations. At that time he had not received any complaint contending that the ballot papers should be rejected. He has further stated that counting procedure was done under the supervision of the Collector, District Election Officer and also observers of the Chief Election Commissioner. In cross-examination this witness has deposed that he has personally examined all 1199 declarations. At that time he had not received any complaint contending that the ballot papers should be rejected. He has further stated that counting procedure was done under the supervision of the Collector, District Election Officer and also observers of the Chief Election Commissioner. He has clarified that Form 13-A has to be scrutinized by him alone and not to be shown to the candidate and that he had not shown the declaration to the candidate or their counting agents. Mr. Shashikant Shahu Pawar, P.W. 8 has stated that the police had raided the house of Vayakule and he had acted as a panch and his signature was taken on the panchanama. He has further stated hat Vaykule was sitting with the ballot papers and there were some other people who were interfering with the ballot papers. The police recovered the ballot papers and some rubber stamps. There was another panch witness by name Purshottam Gore. In his cross-examination he admits that he was the Chief Campaigner and also the Chief Election agent of the petitioner. His son had also contested as a candidate for Shiv Sena Party to Barshi Municipal Council. He stated that he was informed by party workers that illegalities were committed at Vyakule's house. In his cross-examination he has stated that he is practising lawyer from 1988. He sets out that between 3.30 and 4.00 p.m. on that day the workers of the Shiv Sena party on coming to know of illegalities being committing at the house of Vayakule reached there at 3.30 p.m. When he reached there he saw Vayakule, Mohan Hukerde, B.M. Supekar and one office boy Sidhu were setting on the floor on a green mattresses. They had with them some brown papers, envelops and stamps. Police Inspector asked them to open the door, which they did. He along with the Police Inspector went inside. Two persons ran away. Record was prepared of articles found and a panchanama drawn up. He sets out that what was attached was form 13-A consisting of 12 bundles one bundle consisting of 10 forms and one bundle had 67 forms. In cross-examination he states that he came to the scene on being informed by the workers of Shiv Sena party. He cannot recollect the names. He sets out that what was attached was form 13-A consisting of 12 bundles one bundle consisting of 10 forms and one bundle had 67 forms. In cross-examination he states that he came to the scene on being informed by the workers of Shiv Sena party. He cannot recollect the names. He denied that he was the leader of the morcha consisting of 400-500 Shiv Sena workers which had gone to the Tahsil Office. At Vayakule's house. It is his case there were 200-250 people. He denied that what he has deposed is false. Radhakrishna Nagoji Gamane, Deputy Superintendent of Police was examined as P.W. 10. It is his case that in 1999 he was Police Inspector of Barshi Police Station and during that period he had no occasion to raid the house of Vayakule. He deposes that at 2.00 p.m. a morcha had been taken to Tahsil Office where he was present. After handing over a representation those persons staged a Dharna. At that time they received a phone call from the P.S.O. about the gathering of mob at Vayakule's house. He immediately proceeded with his staff. Before Vayakule's house he found the car of the Tahsildar. There was stone throwing on the car and many of those present were beating up the Tahsildar. He took the Tahsildar in his vehicle and took him to the Police Station and directed the P.S.O. to take further action and again proceeded to Vayakule's house where he found a mob outside Vayakule's house as also inside the house. The glass panes had been broken. He requested the mob to leave. They refused to go. He has deposed that a large number of Shiv Sena workers and the petitioner were also present who informed him that there was election material at the house of Vyakule and to inform the Collector to remain present, otherwise they will not leave the place. He thereupon phoned the Collector, who informed him that along with the Sub-Divisional Officer to attach the election material and hand it over to S.D.O. They accordingly attached the material found in the house of Vyakule by making a panchnama. He and S.D.O. affixed their signature. The material was handed over for further action. He sets out that no entry was made in the police diary, but he asked the P.S.O. to make entry. He and S.D.O. affixed their signature. The material was handed over for further action. He sets out that no entry was made in the police diary, but he asked the P.S.O. to make entry. In his cross-examination he points out that there were prohibitory orders. However, the petitioner along with Shiv Sena workers had taken permission and handed over representation to the Tahsildar. No permission was taken for the morcha. He explained that no F.I.R. had been registered pertaining to the panchanama nor has any person complained or asked for registration of offence in respect of the seizure of the material attached at Vayakule's house. He did the panchnama because he was asked to do so. P.W. 11 Arun Bhagwan Unhale, Addition Collector who was at the relevant time the Sub-Divisional Officer and Sub-Divisional Magistrate at Solapur has been examined. He has deposited in similar manner as the Deputy Superintendent of Police about the seizure of election material from Vayakule's house. He has stated that neither the Collector, Returning Officer nor any other connected with the election process has lodged any F.I.R. with the police in respect of the materials attached in the house of Vayakule. 8. Madan Baliram Vyakule has been examined as P.W. 12. He has explained that in 1999 he was working as Nayab Tahsildar at Barshi and as directed by his senior he participated in the work of the conduct of election and has been appointed as Additional Assistant Returning Officer. He stated that on 8th October, 1999 police had come to his house. He has explained that the counting of ballot papers had taken place at Osmanabad. After counting was cover, Returning Officer sent the ballot papers to the sealing squad. The sealing took place at Osmanabad and thereafter the sealed papers were brought to Barshi. The sealed ballot boxed were sent to Government Treasury and the other materials like empty boxes were received out of which 1162 postal ballots were accompanying Form 13-A. He has stated that he is not aware whether another 37 envelopes were also sent to sealing squad. He has stated that the sealed ballot papers and sealed envelopes has to go to Government Treasury. He has deposed that he was not aware whether the declaration under Form 13-A were also sent to the said sealing squad. He has stated that the sealed ballot papers and sealed envelopes has to go to Government Treasury. He has deposed that he was not aware whether the declaration under Form 13-A were also sent to the said sealing squad. He has explained that they were doing work at around 1.00 to 1.30 p.m. At that time one person came there and informed them that a representation was being given to Tahsildar and morcha is proceeding to Tahsildar's office. He was instructed by the Collector to keep the papers till he comes after accepting the representation. After leaving the Tahsildar's case the morcha came to the godown when he came to know that the morcha was proceeding to godown and as there was no police protection and the papers were important he thought if proper to take the papers to his house, which was at a distance of 5 minutes from the godown and as the morcha was coming from the office, he could not go to his office. The envelopes with the declaration forms totalling 1162 had been taken to Government godown. He further explains that the election material other than ballot papers had been taken to godown on 8th October, 1999 between 12.00 and 1.00 p.m. To a further question that if the election material including the envelopes and declaration had already been taken to godown what was the necessity of he and Tahsildar going back to the godown. The witness explains that the Returning Officer Waghmare had intimated to Tahsildar that the material remained to be sealed. In turn Tahsildar informed him and that is how both of them went to godown. It is his case that before he went to his house the work of sealing of election material was going on. After they reached his house along with election material and they were about to start with the work, the people from the morcha forcibly entered into his house and tried to snatch away the election material and even beat one of their associates. He has explained that there were no ballot papers in the godown as they had been sent to the Treasury Office. The work at the godown and his house was only for the purpose of sealing the election material. 9. He has explained that there were no ballot papers in the godown as they had been sent to the Treasury Office. The work at the godown and his house was only for the purpose of sealing the election material. 9. Ganpati Dnyanu Lokhande, P.W. 13 at the relevant time was Assistant District Resettlement Officer, Solapur and had taken charge of Tahsildar of Barshi on 10th October, 1999. He explained that the panchanama was drawn in respect of the documents found. There is nothing really relevant from the deposition of this witness. 10. Laxman Yallappa Gunje P.W. 14 at the relevant time was posted and working as Tahsildar at Barshi. He has explained that on 8th October, 1999 Mr. Waghmare telephoned from Solapur informing that some of the important papers in the ballot boxes sent from Osmanabad had remained to be sealed. Thereafter, he along with others took the said turn in B. C truck to Government godown. He instructed Mr. Vaykule to open the trucks and to seal the important material which had remained to be sealed. At that time he was requested to come to Tahsil office to accept representation. He left in a Government jeep to Tahsil office after accepting the representation. He was sitting in his chamber doing his day to day work. At about 2.30 to 3.00 p.m. some of the activities informed him that some ballot papers were found at the residence of Vayakule. He proceeded to Vayakule's house and on his way he was manhandled by workers of the Shiv Sena Party. 11. This is all the evidence before this Court in so far as the issue of postal ballot papers are concerned. What emerges from this oral evidence of the witnesses is that the ballot papers were not in the godown but had been sent to the treasury. In other words there were no ballot papers found at the house of Vaykul. Secondly, from the evidence on record all that is shown is that at the house of Vayakule some election material was found. The entire case of the petitioner is based on the facts that Form 13-A(2) were not properly signed and verified and that the work was being done at Vayakule's house. The said forms have not been produced through any witness. The entire case of the petitioner is based on the facts that Form 13-A(2) were not properly signed and verified and that the work was being done at Vayakule's house. The said forms have not been produced through any witness. It is, therefore, not possible for this Court to know whether the forms are complete or incomplete or whether there were signatures or not. What is, however, material is the contemporaneous documentary evidence in the form of Exhibit P-11 and Exhibit R-2 collectively. To my mind these two documents must clinch the issue against the petitioner. The petitioner was present when the postal ballot papers were counted. On Exhibit P-11 he has appended his signature without any demur or protest in the manner of counting of postal ballot papers. His evidence to the contrary cannot be believed. Waghmare, the Returning Officer has explained the procedure that he followed regarding Form 13-A(2). Even at the time of recount there has been no challenge to the counting procedure. The entire case was built upon the so-called material found at the house of Vayakule. The petitioner has been unable to show or prove that the counting procedure has been substantially vitiated or there was any serious illegality on the part of the Returning Officer in counting the postal ballot papers. Merely because a mob gathered near the house where according to Gunje the papers were taken, because the mob was approaching the godown and they foresaw danger because there was no police protection available, cannot result in this Court coming to the conclusion that there was tampering with the election material. After the election results were declared the ballot papers had been sealed and sent to the Government Treasury. There is no challenge that the ballot papers were not properly stamped. Another argument advanced was based on the contention that the respondent No. 1 had collected the postal ballot papers from the voters and thereafter had posted them himself. Apart from the oral testimony of the petitioner there is no material either documentary or any other count which will lead to contradict this statement of the petitioner for this Court to come to the conclusion that the respondent was guilty of collecting the postal ballots. The entire edifies of the case seems to have been created after the election results were announced based on the panchanama prepared at Vayakule's house. The entire edifies of the case seems to have been created after the election results were announced based on the panchanama prepared at Vayakule's house. To my mind the petitioner, on the material available, has been unable to show that the respondent No. 1 was guilty of any corrupt practice. Apart from that the petitioner has been unable to show that the Returning Officers had acted in breach of the Rules or provisions of the Representation of Peoples Act. The allegations against the officers taking part in the electoral process are unsubstantiated and seem to have been merely made with a view to create suspicion about the entire counting process. To my mind the entire edify of the case is built on suspicion benefit of any proof. The petitioner has been unable to discharge the burden which is required to be discharged in an election petition. The results of a returned candidate cannot be upset on flimsy conjectures which was the basis of this petition. Once that be the position, I have to hold that the petitioner has been unable to prove Issue No. 2 and as such that issue has to be answered in the negative against the petitioner. 12. That leaves us with Issue Nos. 11, 12, and 13. In so far as 1200 ballot votes are concerned for the reasons earlier disclosed the petitioner has been unable to produce any evidence that the said votes were wrongly counted in favour of the respondent No. 1. On the contrary documentary evidence produced and the examination of Waghmare, the Returning Officer would show that the case of the petitioner was not supported by any evidence. The petitioner has been unable to show any case which will attract the provisions of section 100(d)(iii) or section 101(d)(iv) of the Representation of People Act, 1951 that issue also will have to be answered against the petitioner. Considering the discussion as held earlier Issue No. 13 must be answered in the negative and against the petitioner. The petitioner has failed to make out any case for recount. As the answer to the issues are in the negative the Issue No. 14 has to be answered in the negative. 13. In the light of that the election petition must be dismissed with costs. 14. Election petition stands dismissed with costs quantified at Rs. 2000/-. 15. The petitioner has failed to make out any case for recount. As the answer to the issues are in the negative the Issue No. 14 has to be answered in the negative. 13. In the light of that the election petition must be dismissed with costs. 14. Election petition stands dismissed with costs quantified at Rs. 2000/-. 15. A copy of this order be sent to the Speaker of the Legislative Assembly as also to the office of the election commission in terms of the provisions of the Act and the Rules. 16. Documents to be returned after appeal period is over. 17. Parties and authorities to act on an ordinary copy of this order duly authenticated by the Associate of this Court. Election petition dismissed. -----"