JUDGMENT Hon’ble S.U. Khan, J.—Heard learned Counsel for the parties. This First appeal under Rule 49 of U.P. Kshetra Panchayat (Election of Pramukhs and Up-Pramukhs and Settlement of Election Dispute) Rules, 1994 has been filed by the winning candidate whose election has been set aside by the impugned judgment and order passed by District Judge, Hathras in Election Petition No. 2 of 2006 Smt. Meena Devi v. Brajesh Kumar. The dispute relates to the election of Block Pramukh, Kshetra Panchayat Sahpau District Hathras. Total 54 voters cast their votes. According to the final result declared, Brajesh Kumar obtained 27 votes, Smt. Meena Devi obtained 26 votes and one vote was declared invalid. The election petition was filed mainly on the allegation that after completion of counting both the parties were declared to have obtained equal number of votes i.e. 27 each and Assistant Returning Officer (A.R.O.) who was B.S.A. (Basic Shiksha Adhikari) indicated that result would be declared on the basis of lottery. However, meanwhile A.R.O. received a phone call and thereafter he manipulated an additional straight line in one vote of Smt. Meena Devi and thereafter declaring the said vote invalid, declared Brajesh Kumar elected by one vote. Original ballot papers were summoned by the learned District Judge. The learned District Judge pointed out that one line parallel to the (1) indicated by the voter in the ballot paper was drawn in different ink to make the said vote invalid. I have also perused the said ballot paper. There is absolutely no doubt that the ink is different. The main question is as to who did it and its effect. Before entering into the merits of the appeal in detail it is essential to note that the election has been declared invalid by the impugned judgment only on the ground that manipulation in the ballot paper was done by A.R.O. There is no finding that inspite of the additional line in the ballot paper, the vote still remained valid has not been discussed in the impugned judgment. During the course of the arguments of learned Counsel for the appellant when he opened his argument regarding the aforesaid aspect I called upon learned Counsel for the respondent to enquire as to whether this point was taken before the Court below and whether he would be pressing this point or not. During the course of the arguments of learned Counsel for the appellant when he opened his argument regarding the aforesaid aspect I called upon learned Counsel for the respondent to enquire as to whether this point was taken before the Court below and whether he would be pressing this point or not. Learned Counsel for the respondent categorically stated that even though he was very much interested to press the said point as in his opinion favourable decision on this point alone could culminate in the judgment in favour of his client, however, as this point was not raised before the Court below hence he was handicapped in pressing the said point. 2. However, when learned Counsel for the respondent started his arguments after the conclusion of the argument of learned Counsel for the appellant he did dwell upon this aspect also. 3. Rule 26 of the aforesaid Rules of 1994 deals with the situation in question. The said Rule 26 is quoted below : "26. Procedure at the counting.—(1) As soon as the poll is closed the Returning Officer shall, in the presence of the contesting candidates and the members who may be present, proceed to count the votes. (2) The Returning Officer shall open the ballot box and shall— (a) count the number of ballot papers taken out therefrom and record it in a statement; (b) scrutinise the ballot papers and separate those which in his opinion are valid from those which in his opinion are invalid endorsing on the latter the word “rejected” with reasons for such rejection; and (c) arrange all the valid ballot papers in parcels according to the first preference recorded for each candidate. (3) A ballot paper shall be rejected as valid on which— (a) the number 1 is not marked; or (b) the number 1 is marked opposite the name of more than one candidate or is so marked as to render it doubtful to which candidate it is intended to apply; or (c) the number 1 and some other numbers are marked opposite the name of the same candidate; or (d) any mark is made by which the voter may afterwards be identified." 4. In the Election petition in paragraph 6 it was mentioned that petitioner was challenging the election of the respondent upon two grounds. In the Election petition in paragraph 6 it was mentioned that petitioner was challenging the election of the respondent upon two grounds. Ground No. (b) is quoted below : “Because there was improper rejection of petitioner’s one ballot paper which materially affected the result of the election.” 5. It may be mentioned that first ground was regarding disqualification of the respondent. The said ground has not been argued in this appeal. 6. It may be mentioned that for the election of Block Pramukhs, elected members of Kshetra Panchayat are the voters. Kshetra Panchayat in question contains 54 wards hence 54 elected members of the said wards were voters for the election in question. Paragraph 29 of the election petition is quite relevant and is quoted below : “That after the polling was over at 3 P.M. the counting of votes was done. For the purposes of counting of votes only the contesting candidates were allowed to remain present at the counting place. Therefore, the petitioner, the respondent and two candidates for Senior Up-Pramukh namely Rohtash son of Rajan Singh and Usha Devi wife of Netra Pal Singh and two candidates for Junior Up-Pramukh namely Dinesh Kumar son of Lekh Raj and Sheela Devi wife of Suresh Chand were present at the time of counting of votes.” 7. Paragraphs 35 and 36 of the election petition are also relevant and are quoted below : "35. That upon equality of votes, 27 each to petitioner and respondent the Assistant Returning Officer declared in the presence of every one that the result will be determined by drawing the lots. He requested all the candidates to sit and wait outside of the room for short while so that he may make arrangement for drawing of lots. Upon the said request the petitioner and other candidates came out of counting room and sit out of the room. It was about 3.45 P.M. 36. That the petitioner and other candidates waited about 10 minutes and in the meantime the Assistant Returning Officer received a phone call at his mobile phone number 9412671201. After receiving the telepone call he took ballot paper No. 20 which was marked in favour of petitioner and draw a line before figure ‘1’ in order to make the ballot paper invalid. The line so drawn is in a different ink which is apparent from perusal of naked eyes.” 8. After receiving the telepone call he took ballot paper No. 20 which was marked in favour of petitioner and draw a line before figure ‘1’ in order to make the ballot paper invalid. The line so drawn is in a different ink which is apparent from perusal of naked eyes.” 8. It may be mentioned that by virtue of Rule 17 the manner of voting prescribed is by means of single transferable vote under Rule 25(3)(b), No. 1 is to be placed on the ballot paper in the space opposite the name of the candidate whom he chooses. 9. In the entire election petition no such specific ground has been taken that irrespective of an additional mark 1 the vote remained valid. Accordingly, I do not consider it necessary to discuss the authorities which were cited at the bar to contend that such a mark invalidated the vote or not on the ground that it became identifiable. 10. A.R.O. was examined as witness by the elected candidate appellant. His deposition runs into several pages. The learned District Judge after thoroughly examining the said testimony came to the conclusion that he was not stating the truth and he was responsible for making the additional mark. The learned District Judge severely criticised the working style of A.R.O. and his conduct immediately after the conclusion of the counting process. 11. Learned Counsel for the appellant has very vehemently argued that respondent/election petitioner categorically stated in para-35 of the election petition that she was asked to sit outside the counting room and during that period A.R.O. received a phone call which prompted him to make manipulation in one vote hence petitioner was not in a position to say anything regarding the nature of message received by ARO or conversation between ARO and the person who made the phone call. In this regard learned Counsel has also referred to an application given by the election petitioner on the counting day (27.2.2006) at 5 p.m. in which it was stated that alongwith ARO Block Karmchari was/were present at the time of counting and he (or they) converted one line into two lines on one of her votes. In this regard reference has also been made by the learned Counsel to the relevant portions of oral testimony of the election petitioner. In this regard reference has also been made by the learned Counsel to the relevant portions of oral testimony of the election petitioner. In the said statement she clearly stated that the statement which she made in para 35 of the election petition that she had been asked to sit outside was not correct and she was very well inside the room and that she was inside the room near the gate. Thereafter a specific question was posed to her as to why in the election petition wrong fact was mentioned. She replied that she and other candidates were asked to sit and wait but they waited in a standing position inside the room. She further stated that she did not remember as to whether the statement (Baat) of going outside the room was wrong or not. She further stated that in the room where counting was held other persons were also present and when she asked for their identify she was told that they were block karmchari. 12. I.P.S. Solanki, District Basic Shiksha Adhikari who was A.R.O. categorically stated that he rejected one vote on the ground that it violated the secrecy. 13. Regarding phone call the ARO stated that during counting he received routine phone calls from District Magistrate who was enquiring about the stage and progress of the counting and that absolutely no such message was given to him by District Magistrate or any one else that he should cancel one vote of election petitioner. Of course he categorically denied that he had made the additional line on one vote. In his statement it is mentioned that he had admitted that he had announced that both the parties had got equal votes. However, when the said statement was read over to him he stated he had said that I had not declared that both the parties had polled equal votes. Learned Counsel for the appellant has also vehemently argued that election petitioner could obtain the details of alleged conversation hence adverse inference should be drawn against her for not filing the same. Learned District Judge was very much impressed/annoyed with the post declaration of result, conduct of A.R.O. i.e. Indra Prasad Singh Solanki D.W. 1. 14. Learned Counsel for the appellant has also vehemently argued that election petitioner could obtain the details of alleged conversation hence adverse inference should be drawn against her for not filing the same. Learned District Judge was very much impressed/annoyed with the post declaration of result, conduct of A.R.O. i.e. Indra Prasad Singh Solanki D.W. 1. 14. Allegation of the election petitioner was that the winning candidate was member of the party which was in power at that time (Samajwadi Party) hence District Magistrate and other officers of the administration were favourably inclined towards him. 15. It appears that A.R.O. had offered to file certain documents which were photocopies of orders and other documents relating to the election in question before the Court below. However, the Court refused to take them on record (probably on the objection of election petitioner). A.R.O. further stated that he had got photostat copy of all the relevant documents privately and kept them in the records of his office. During the course of examination he admitted that the photo copies which he tendered to file during his examination-in-chief were copies of documents of office of the District Magistrate and of office of District Election officer and of the office of Deputy District Eelection Officer and he further admitted that he was not issued certified copies of these documents. 16. District Judge in his judgment describes that during the course of recording of oral testimony of A.R.O. a unique surprising thing happened which was as follows : The A.R.O. took a file from one Ashok Kumar teacher in primary school who was standing behind him and A.R.O. stated that original documents were available in the said file. When asked by the learned Counsel for the other side as to whether A.R.O. had any authority to keep the records of District Magistrate or Deputy District Election Officer with him, he stated that he had no such authority. He further admitted that Shri Ashok Kumar the teacher from whom he took the file had also no authority from District Magistrate or Deputy District Election Officer to carry or bring to Court original records. Thereafter he stated that he himself brought the original file from District Assistant Election Officer. 17. According to the learned District Judge there was no index in the said file and the said file was impounded by the District Judge. Thereafter he stated that he himself brought the original file from District Assistant Election Officer. 17. According to the learned District Judge there was no index in the said file and the said file was impounded by the District Judge. The said witness further stated that he cancelled the vote at Serial No. 20 on the ground that due to additional sign of 1 vote became identifiable and on that ground he cancelled the same even though in the order of cancellation written by him on the vote in question this fact was not mentioned. 18. The other witness of the election office had stated that just after conclusion of the counting and declaration of results all the relevant documents were handed over to Deputy District Election Officer’s office and were kept in tight security. The learned District Judge opined that if this statement was correct then A.R.O. would not have been able to obtain photostat copies of the vote in question and orders passed by District Magistrate and other authorities on the complaint made by election petitioner. 19. Prima facie the aforesaid conduct of A.R.O. was quite objectionable however, on the basis of this post declaration of result conduct, election could not be set aside. Election could be set aside only if on the basis of evidence some such illegality was found which materially affected the result of the election. 20. The entire emphasis in the election petition was on the fact that A.R.O. after declaring that both the parties had obtained equal votes, received some phone call and thereafter he made manipulation in vote No. 20 which was in favour of election petitioner. However, in the first application which election-petitioner gave to the District Magistrate at 5 P.M. on the day of counting (27.2.2006) copy of which is on page 28 of the paper book filed by appellant there was no such mention that either at one stage A.R.O. declared that both the parties had got equal votes or that he received any phone call and thereupon he made manipulation in one vote which was in favour of election petitioner. That application is only of 5 or 6 lines and it is stated therein that “today after voting I got 27-27 votes, alongwith A.R.O. employees of Block were present at the time of counting. That application is only of 5 or 6 lines and it is stated therein that “today after voting I got 27-27 votes, alongwith A.R.O. employees of Block were present at the time of counting. They (he) made two line on one of my votes and I am being defeated by one vote. 21. Application given or statement made just after the incident is likely to contain least false-hood. One does not get sufficient time and opportunity to make up the case. The two important things mentioned in the election petition i.e. initial declaration of A.R.O. that both the parties polled equal number of votes and receiving a phone call by A.R.O. and thereafter adding 1 line to vote No. 20 are conspicuous by their absence in the aforesaid application which was given almost just after the declaration of result. 22. Moreover, election petitioner could not explain that why she stated in the election petition that after initial declaration by ARO to the effect that both the parties had got equal number of votes they were asked to sit outside the counting hall. If this allegation is correct then it is not understandable as to how election petitioner come to know that ARO received some phone call and thereupon he drew another line on vote No. 20. 23. I did not allow learned Counsel for both the parties to argue the point as to whether additional line on vote No. 20 rendered the same invalid for violating the principle of secrecy or not for the reason that this point was not taken in the election petition. 24. Accordingly, in my opinion, election, petitioner failed to prove that initially ARO declared that both the parties had polled equal number of votes and thereafter ARO received some phone call and thereupon he made another line on vote No. 20. 25. Accordingly, judgment and order passed by the learned District Judge is liable to be set aside and election petition has to be dismissed. 26. This judgment may appear to be heavily based upon procedural technicalities regarding law of pleading and evidence, but after all election petitions and petitions challenging preventive detention have been permitted to monopolise procedural technicalities. 27. Accordingly, appeal is allowed. Impugned judgment and order is set aside. Election petition filed by the respondent is dismissed. No order as to costs. ————