Judgment Tarun Agarwala, J. 1. Election for the 33rd Pauri Legislative Assembly Constituency was held on 21.02.2007. The counting was held on 27.02.2007 and the result was declared on the same day. The respondent no. 1 Yashpal Benam, an independent candidate, was declared elected defeating the petitioner, who was a BJP candidate by a margin of 11 votes. The total votes polled were 35,025 votes. The total number of votes counted were 34,869 and 156 votes were not counted as it was found to be defective. The opposite party received 10,936 votes whereas the petitioner received 10,925 votes. 2. The petitioner, being aggrieved by the declaration of the result, filed an election petition under section 80 / 81 of the Representation of the People Act 1950, praying that the election of the respondent no. 1 should be declared void and further prayed that the petitioner should be declared elected from the said constituency. The petitioner contended in his petition that there have been bundles of irregularities and that the postal ballot papers were wrongly rejected without assigning any reason on account of which the election has been materially affected. In paragraph 12 of the petition, the petitioner contended that approximately 800 postal ballot papers were received, out of which 622 postal ballot papers were counted and 156 postal ballot papers were rejected without any cogent reason. In paragraph 12 (A) it was stated that the votes of Electronic Voting Machine (EVM) were counted first and thereafter, the postal ballot papers, which was in violation of the Rule 54-A of the Conduct of Election Rules 1961 (hereinafter referred to as the “Rules”). In paragraph 17 of the petition, it was alleged that the petitioner made a request for recounting but no heed was given by the Returning Officer. In paragraph 21, it was alleged that the Returning Officer deliberately avoided the recounting of the votes. In paragraph 20, it was alleged that a bundle of irregularities was committed by the Returning Officer by rejecting the postal ballot papers. In paragraph 22, it was alleged that 156 valid votes were rejected without any valid reason. In paragraph 25, it was alleged that there had been an improper reception, refusal and rejection of the votes. In paragraph 20, it was alleged that a bundle of irregularities was committed by the Returning Officer by rejecting the postal ballot papers. In paragraph 22, it was alleged that 156 valid votes were rejected without any valid reason. In paragraph 25, it was alleged that there had been an improper reception, refusal and rejection of the votes. In paragraph 16, the petitioner alleged that the postal ballot papers were rejected on the ground that there was no seal of the Attesting Officer and that there were no signature of Commandant (presumably the Station Officer) and that the ballot papers were rejected also on the ground that signature was not made at the proper place. On these allegations, the election petition was filed. 3. The returned candidate, i.e. the respondent no. 1 filed his written statement denying the allegations made in the petition and contended that the postal ballot papers were counted first and only thereafter, the votes in the EVM were counted. In paragraph 12-A of the written statement, the respondent asserted that not only the postal ballot papers were counted first but after counting of the EVM votes, the postal ballot papers were re-counted thrice. In paragraph 16 of the written statement, the respondent asserted that the postal ballot papers were rightly rejected under sub clause (4) and sub clause (8) of the Rule 54-A of the Rules. In paragraph 35, it was alleged that 622 postal ballot papers were received till 8.00 a.m. i.e. before the start of the counting of the votes out of which 138 postal ballot papers were validly rejected. 4. On the basis of the pleadings led by the parties, 5 issues were framed, namely:- 01. Whether the votes received through postal ballots for 33 Pauri Legislative Assembly Constituency were counted in accordance with Rule 54-A of the Conduct of Election Rules 1961? 02. Whether the counting of postal ballot papers was conducted in the presence of the election petitioner or his counting agents, as alleged by the respondent no. 1 in para 33 of the written statement? 03. How many postal ballot papers had been received upto 8 O’ clock in the morning of the date of counting? 04. 02. Whether the counting of postal ballot papers was conducted in the presence of the election petitioner or his counting agents, as alleged by the respondent no. 1 in para 33 of the written statement? 03. How many postal ballot papers had been received upto 8 O’ clock in the morning of the date of counting? 04. Whether 138 postal ballot papers had been rejected on the ground mentioned in Rule 54-A (4) of the Conduct of Election Rules 1961 and 18 postal ballot papers were rejected as per provisions of sub-rule (8) of Rule 54-A? 05. To what relief, if any, is the petitioner entitled? 5. The evidence was led by the parties. On behalf of the petitioner, PW1 Tierath Singh Rawat, i.e., the petitioner; PW2, Vinod Sachdeva, Election Agent of petitioner; PW3, Ansuya Prasad Juyal, Counting Agent of the petitioner; PW4, Dheeraj Singh Negi, Superintendent, Department of Post, Pauri Garhwal; PW5, Bhagwat Kishore Mishra, (Returning Officer) the then SDM, Barahsyon, Pauri were examined. On behalf of the respondent, the returned candidate Yashpal Benam himself deposed as DW1; Vinod Kumar, counting supervisor was examined as DW2; Mukesh Negi, counting agent of Yashpal Benam was examined as DW3; Jagdish Singh Bisht, counting agent of Yashpal Benam was examined DW4; Ravindra Rawat counting agent of Yashpal Benam was examined as DW5; Jaspal Chauhan, counting agent of Yashpal Benam was examined as DW6; Ashok Bisht, Chief Election Agent of Yashpal Benam was examined as DW7; Laxmi Prasad Kothiyal, Counting Assistant was examined as DW8; Ansuya Prasad Counting Assistant was examined as DW9; Gopal Gupta, Dak Counting Assistant was examined as DW10. 6. In the light of the pleadings and the evidence that has come forward, the petition basically revolves upon the rejection of the postal ballot papers by the Returning Officer on different grounds. The issues framed also relates to the rejection of the postal ballot papers. 7. With regard to issue no. 3, the petitioner has alleged in paragraph 12 of the petition that approximately 800 postal ballot papers were received out of which 622 votes were counted and 156 votes were rejected. 8. PW5 B.S. Mishra, the Returning Officer deposed and submitted that 622 postal ballot papers were received at the start of the counting at 08.00 a.m. on 27.02.2007. The said fact is corroborated by the Returning Officer from paper no. 8. PW5 B.S. Mishra, the Returning Officer deposed and submitted that 622 postal ballot papers were received at the start of the counting at 08.00 a.m. on 27.02.2007. The said fact is corroborated by the Returning Officer from paper no. 38A / 43 which was prepared by the Returning Officer himself on the date when the counting took place. PW4 D. S. Negi, Superintendent of Post, Pauri Garhwal also corroborates the aforesaid fact. PW1, i.e., the petitioner also deposed that 622 votes were counted by the Returning Officer. 9. In the light of aforesaid evidence, it is hereby held that 622 postal ballot papers were received till 8 O’clock in the morning of the date of the counting of the votes, i.e. 27.02.2007. Issue no. 3 is accordingly decided. 10. With regard to issue no. 2, the petitioner has alleged in paragraph 12 of his petition that the postal ballot papers were not counted before the petitioner or before his agent. This fact has been vehemently denied by the respondent no. 1 in his written statement and contended that the petitioner and his agent were present when the postal ballot papers were being counted. The petitioner in his deposition has admitted that he was present at the place of the counting of the votes and also made an oral protest for recounting. PW2, Vinod Sachdeva, the Election Agent of the petitioner in his deposition has stated that not only he but the petitioner was also present at the time of the counting of the postal ballot papers. 11. In the light of the aforesaid admission, it is held that the counting of the postal ballot papers was conducted in the presence of the petitioner as well as before his Election Agent. Issue no. 2 is accordingly decided. 12. Issues no. 1 and 4 are interconnected and the same are being decided together. The crux of the two issues is, that the procedure prescribed under Rule 54-A of the Rules was not followed while counting the postal ballot papers and that 138 postal ballot papers were wrongly rejected under Rule 54-A (4) of the Rules and 18 postal ballot papers were wrongly rejected under sub-clause (8) of Rule 54-A of the Rules. 13. Before considering the evidence led by the parties on this aspect, it would be appropriate to refer to the Rules framed by the Legislature in this regard. 14. 13. Before considering the evidence led by the parties on this aspect, it would be appropriate to refer to the Rules framed by the Legislature in this regard. 14. Part III of the Rules 1961 relates to postal ballot. Rule 22 provides the Form of ballot paper and the particulars that is mentioned therein. Rule 23 provides for the issuance of the ballot paper, which is required to be sent by post under a certificate of posting to the Elector, which contains a declaration form in Form 13A, a cover in Form 13B, a large cover addressed to the Returning Officer in Form 13C and instructions for the guidance of the Elector in Form 13D. Rule 24 provides how the Elector is required to cast his vote on a ballot paper in accordance with the directions contained in Form 13D. It also provides the procedure as to how the elector signs the declaration in Form 13A in the presence of an Attesting Officer, who is required to attest the signatures of the Elector. Rule 25 provides the procedure as to how the ballot paper is required to be signed by an illiterate or an infirm voter. Rule 27 provides the procedure on how to return the ballot paper to the Returning Officer. For facility, the provisions of Rules 22, 23, 24, 25 and 27 are extracted hereunder: “22. Form of ballot paper.- [(1) Every postal ballot paper shall have a counterfoil attached thereto, and the said ballot paper and the counterfoil shall be in such form, and the particulars therein shall be in such language or languages, as the Election Commission may direct.] (2) The names of the candidates shall be arranged [on the postal ballot paper] in the order in which they appear in the list of contesting candidates. (3) If two or more candidates bear the same name, they shall be distinguished by the addition of their occupation or residence or in some other manner. 23. (3) If two or more candidates bear the same name, they shall be distinguished by the addition of their occupation or residence or in some other manner. 23. Issue of ballot paper.-(1) A postal ballot paper shall be sent by post under certificate of posting to the elector together with- (a) a declaration in Form 13A; (b) a cover in Form 13B; (c) a large cover addressed to the returning officer in Form 13C; and (d) instructions for the guidance of the elector in Form 13D: Provided that the returning officer may, in the case of a special voter or a voter on election duty, deliver the ballot paper and Forms, or cause them to be delivered, to such voter personally. [(2) The returning officer shall at the same time- (a) record on the counterfoil of the ballot paper the electoral roll number of the elector as entered in the marked copy of the electoral roll; (b) mark the name of the elector in the marked copy of the electoral roll to indicate that a ballot paper has been issued to him, without however, recording therein the serial number of the ballot paper issued to that elector; and (c) ensure that that elector is not allowed to vote at a polling station.] (3) Before any ballot paper is issued to an elector at an election in a local authorities' constituency or by assembly members, the serial number of the ballot paper shall be effectively concealed in such manner as the Election Commission may direct. (4) Every officer under whose care or through whom a postal ballot paper is sent shall ensure its delivery to the addressee without delay. (4) Every officer under whose care or through whom a postal ballot paper is sent shall ensure its delivery to the addressee without delay. (5) After ballot papers have been issued to all the electors entitled to vote by post, the returning officer shall- (a) at an election in a parliamentary or assembly constituency, seal up in a packet that part of the marked copy of the electoral roll which relates to service voters and record on the packet a brief description of its contents and the date on which it was sealed and send the other relevant parts of the marked copy to the several presiding officers [or marking the names of electors to whom ballot papers are issued at the polling stations without however recording therein the serial numbers of the ballot papers issued to the electors]; and (b) at any other election, seal up in a packet the marked copy of the electoral roll and record on the packet a brief description of its contents and the date on which it is sealed. [(6) The returning officer shall also seal up in a separate packet the counterfoils of the ballot papers issued to electors entitled to vote by post and record on the packet a brief description of its contents and the date on which it was sealed.] 24. Recording of Vote.-(1) An elector who has received a postal ballot paper and desires to vote shall record his vote on the ballot paper in accordance with the directions contained in Part I of Form 13D and then enclose it in the cover in Form 13B. Recording of Vote.-(1) An elector who has received a postal ballot paper and desires to vote shall record his vote on the ballot paper in accordance with the directions contained in Part I of Form 13D and then enclose it in the cover in Form 13B. (2) The elector shall sign the declaration in Form 13A in the presence of, and have the signature attested by, a stipendiary magistrate or such other officer specified below, as may be appropriate, to whom he is personally known or to whose satisfaction he has been identified- (a) in the case of a service voter, such officer as may be appointed in this behalf by the Commanding Officer of the unit, ship or establishment in which the voter or her husband, as the case may be, is employed or such officer as may be appointed in this behalf by the diplomatic or consular representative of India in the country in which such voter is resident; (b) in the case of a special voter, an officer not below the rank of a Deputy Secretary to Government; (c) in the case of a voter on election duty, any gazetted officer [or the presiding officer of the polling station at which he is on election duty]; (d) in the case of an elector under preventive detention, the Superintendent of the Jail or the Commandant of the detention camp in which the elector is under detention; and (e) in any other case, such officer as may be notified in this behalf by the Election Commission. 25. Assistance to illiterate or infirm voters.-(1) If an elector is unable through illiteracy, blindness or other physical infirmity to record his vote on a postal ballot paper and sign the declaration, he shall take the ballot paper, together with declaration and the covers received by him to an officer competent to attest his signature under sub-rule (2) of Rule 24 and request the officer to record his vote and sign his declaration on his behalf. (2) Such officer shall thereupon mark the ballot paper in accordance with the wishes of the elector in his presence, sign the declaration on his behalf and complete the appropriate certificate contained in Form 13A. 27. (2) Such officer shall thereupon mark the ballot paper in accordance with the wishes of the elector in his presence, sign the declaration on his behalf and complete the appropriate certificate contained in Form 13A. 27. Return of ballot paper.-(1) After an elector has recorded his vote and made his declaration under rule 24 or rule 25, he shall return the ballot paper and declaration to the returning officer in accordance with the instructions communicated to him in Part II of Form 13D so as to reach the returning officer before [the hour fixed for the commencement of counting of votes]. (2) If any cover containing a postal ballot paper is received by the returning officer after the expiry of the time fixed in sub-rule (1), he shall note thereon the date and time of its receipt and shall keep all such covers together in a separate packet. (3) The returning officer shall keep in safe custody until the commencement of the counting of votes all covers containing postal ballot papers received by him.” 15. Part V of the Rules relates to the counting of the ballot papers. The present controversy revolves on the provisions and interpretation of Rule 54-A. For facility, Rule 54-A is extracted hereunder: “54-A. Counting of votes received by post.-(1) The returning officer shall first deal with the postal ballot papers in the manner hereinafter provided. (2) No cover in Form 13C received by the returning officer after the expiry of the time fixed in that behalf shall be opened and no vote contained in any such cover shall be counted. (3) The other covers shall be opened one after another and as each cover is opened, the returning officer shall first scrutinize the declaration in Form 13A contained therein. (4) If the said declaration is not found, or has not been duly signed and attested, or is otherwise substantially defective, or if the serial number of the ballot paper as entered in it differs from the serial number endorsed on the cover in Form 13B, that cover shall not be opened, and after making an appropriate endorsement thereon, the returning officer shall reject the ballot paper therein contained. (5) Each cover so endorsed and the declaration received with it shall be replaced in the cover in Form 13C and all such covers in Form 13C shall be kept in a separate packet which shall be sealed and on which shall be recorded the name of the constituency, the date of counting and a brief description of its content. (6) The returning officer shall then place all the declarations in Form 13A which he has found to be in order in a separate packet which shall be sealed before any cover in Form 13B is opened and on which shall be recorded the particulars referred to in sub-rule (5). (7) The covers in Form 13B not already dealt with under the foregoing provisions of this rule shall then be opened one after another and the returning officer shall scrutinize each ballot paper and decide the validity of the vote record thereon. (8) A postal ballot paper shall be rejected- [(a) if it bears any mark (other than mark to record the vote) or writing by which the elector can be identified; or] (aa) if no vote is recorded thereon; or (b) if noted are given on it in favour of more candidates than one; or (c) if it is a spurious ballot paper; or (d) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or (e) if it is not returned in the cover sent along with it to the elector by the returning officer. (9) A vote recorded on a postal ballot paper shall be rejected if the mark indicating the vote is placed on the ballot paper in such manner as to make it doubtful to which candidate the vote has been given. (10) A vote recorded on a postal ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. (11) The returning officer shall count all the valid votes given by postal ballot in favour of each candidates, record the total thereof in the result sheet in Form 20 and announce the same. (11) The returning officer shall count all the valid votes given by postal ballot in favour of each candidates, record the total thereof in the result sheet in Form 20 and announce the same. (12) Thereafter, all the valid ballot papers and all the rejected ballot papers shall be separately bundled and kept together in a packet which shall be sealed with the seals of the returning officer and of such of the candidates, their election agents or counting agents as may desire to affix their seals thereon and on the packet so sealed shall be recorded the name of the constituency, the date of counting and a brief description of its contents.] 16. Sub clause (4) of Rule 54-A provides that upon scrutiny of the postal ballot papers, if it is found that the declaration is not in the cover or has not been duly signed or it has not been attested or that the declaration form is substantially defective, or if the serial number of the ballot paper, as entered in the declaration form, is different from the serial number endorsed in the cover in Form 13B, in such a situation, the cover containing the ballot paper will not be opened and the Returning Officer will make an appropriate endorsement on it and would reject the ballot paper contained in that cover. 17. Sub clause (8) of Rule 54-A contemplates that the postal ballot paper would be rejected, if it bears any mark to which the elector could be identified or if no vote is recorded on the ballot paper or if the vote is given to more than one candidate or if it is a spurious ballot paper or if the ballot paper is damaged or mutilated and the genuineness of the ballot paper could not be identified or if the ballot paper is not returned in the cover which was sent by the Returning Officer. 18. In the light of the aforesaid Rules, the petitioner contended in paragraph 12A of the petition that the postal ballot papers were not counted first and that the votes recorded in the EVM were counted first. The said allegation was endorsed by the petitioner in his deposition as well as by his Election Agent PW2. On the other hand, the defendant no. The said allegation was endorsed by the petitioner in his deposition as well as by his Election Agent PW2. On the other hand, the defendant no. 1 i.e. the Returned Candidate, his Election Agent DW2 and other witnesses DW3 to DW 10, all made clear statements in their deposition, contending that the postal ballot papers were counted first when the counting had started at 08.00 a.m. on 27.02.2007 and that the votes in the EVM were counted afterwards from 09.00 a.m. onwards. In the light of the divergent evidence which has come forward, a duty is cast upon the court to analyze as to which evidence is correct. However, the task of the court has been made easy by the evidence of the Returning Officer PW5, the witness produced by the petitioner himself. The Returning Officer has categorically asserted in his examination-in-chief that the counting started with the postal ballot papers at 08.00 a.m. and thereafter, the counting of the votes recorded in the EVM started from 09.00 a.m. 19. In the light of the statement made by the Returning Officer, which the court does not find any reason to disbelieve, the court holds that the counting started at 08.00 a.m. first with the postal ballot papers and thereafter, the counting of the votes recorded in the EVM started thereafter. In the light of this finding, the court finds that the procedure contemplated under sub clause (1) of Rule 54-A was duly followed in letter and in spirit. 20. It is alleged that 18 postal ballot papers were rejected under sub clause (8) of Rule 54-A. The evidence led by the petitioner in this regard, is sketchy and vague. The petitioner nor his witnesses gave any reason for the rejection of these 18 votes. Further, no arguments were led by the counsel for the petitioner on this aspect during the course of the hearing of the petition. Consequently, in the absence of any arguments being raised on this aspect and vague assertion being made in the deposition of the petitioner and his witnesses, the court holds that the contention of the petitioner that 18 postal ballot papers were wrongly rejected under sub clause (8) of Rule 54-A is patently erroneous. 21. This leads us to the rejection of 138 postal ballot papers. 21. This leads us to the rejection of 138 postal ballot papers. The petitioner in paragraph 12 of the petition has contended that out of 622 postal ballot papers, 156 postal ballot papers were rejected without any cogent reason. In paragraph 16, the petitioner asserted that the Returning Officer intentionally and deliberately rejected 156 postal ballot papers on false and fictitious ground and that the reasons for the rejection of the postal ballot papers were that there was no seal on the declaration form and that there was no signature of Commandant and that the signature of the Commandant was not at the place provided in the postal ballot papers. The court finds that a general allegation has been made and no specific instance has been given. 22. During the pendency of the proceedings, while the evidence was being recorded, the petitioner moved an application for the recounting of the votes on the basis of the deposition made by the Returning Officer. The power of the court for inspection and recounting of the ballot papers is well settled and has been elaborated by the Supreme Court in various decisions. The law on this aspect has been settled in Ram Sewak Yadav Vs. Hussain Kamil Kidwai AIR 1964 SC 1249; Suresh Prasad Yadav Vs. Jai Prakash Mishra AIR 1975 SC 376; Bhabhi Vs. Sheo Govind AIR 1975 SC 2117. Without burdening this judgment of various decisions given by the Supreme Court, this court is of the view that it would suffice to mention the decision of V.S. Achuthanandan Vs. P.J. Francis AIR 2001 Supreme Court 837 wherein the Supreme Court held as under: “1. The secrecy of the ballot is sacrosanct and shall not be permitted to be violated and merely for asking or on vague and indefinite allegations or averments of general nature. At the same time purity of election process has to be preserved and therefore inspection and re-count shall be permitted but only on a case being properly made out in that regard. 2. A petition seeking inspection and re-count of ballot-papers must contain averments adequate, clear and specific making out a case of improper acceptance of rejection of votes or non-compliance with statutory provisions in counting. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose. 3. 2. A petition seeking inspection and re-count of ballot-papers must contain averments adequate, clear and specific making out a case of improper acceptance of rejection of votes or non-compliance with statutory provisions in counting. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose. 3. The scheme of the rules prescribed in Part V of the Conduct of Elections Rules, 1961 emphasises the point that the election petitioner who is a defeated candidate has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly overruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83(1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts. 4. The election petitioner must produce trustworthy material in support of the allegations made for a re-count enabling the court to record a satisfaction of a prima facie case having been made out for grant of the prayer. The court must come to the conclusion that it was necessary and imperative to grant the prayer for inspection to do full justice between the parties so as to completely and effectually adjudicate upon the dispute. 5. The power to direct inspection and re-count shall not be exercised by the court to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out material for declaring the election to be void. 6. By mere production of the sealed boxes of ballot papers or the documents forming part of record of the election proceedings before the court the ballot papers do not become a part of the court record and they are not liable to be inspected unless the court is satisfied in accordance with the principles stated hereinabove to direct the inspection and re-count. 7. 7. In the peculiar facts of a given case the court may exercise its power to permit a sample inspection to lend further assurance to the prima facie satisfaction of the court regarding the truth of the allegations made in support of a prayer for re-count and not for the purpose of fishing out materials.” 23. The Supreme Court held that the secrecy of the ballot is sacrosanct and should not be violated on the mere asking on vague and indefinite allegations. Merely by making a general allegation that the votes have been improperly rejected would not serve the purpose and that a specific averment should be made with regard to the wrongful rejection of the ballot papers. The Supreme Court further held that while the counting is going on, the candidate and his election agent are present and they are having first hand knowledge of the reason for the rejection of the votes and that they precisely know the nature of the reason for the rejection of the votes given by the Returning Officer. The Supreme Court, consequently held that it becomes imperative for the losing candidate to make a concise statement of material facts in his election petition justifying the reason either for re-inspection and /or for the recounting of the votes. 24. In the light of the aforesaid decisions of the Supreme Court, it is true that on vague and ambiguous evidence, no court could direct recounting of the votes but it is equally true that the doors of justice cannot be shut for a person seeking a recount of the votes without affording him an opportunity of proving the circumstances justifying a recount. It is also a settled position of law that the court can direct inspection and recount of votes, if material facts are pleaded and proved for directing such recount in the interest of justice. 25. In the light of the aforesaid, the court, on an application of the petitioner for the recounting of the votes, issued an order dated 01.05.2008 for summoning the 138 postal ballot papers so that the court could record its satisfaction, as to whether the reasons given by the Returning Officer for the rejection of the votes were valid or not. By an order dated 20.05.2008, the court directed the Registrar (Judicial) to scrutinize the 138 postal ballot papers and prepare a concise statement. By an order dated 20.05.2008, the court directed the Registrar (Judicial) to scrutinize the 138 postal ballot papers and prepare a concise statement. The postal ballot papers were opened in the presence of the petitioner and his advocate and in the presence of respondent no. 1, i.e. returned candidate and his Advocate. The Registrar (Judicial) prepared a concise statement and the report was submitted which was supplied by the court to the parties and objections were invited. 26. Much argument was led by the parties on the statement prepared by the Registrar (Judicial) and submissions were made by the learned counsel for the petitioner that certain postal ballot papers were wrongly rejected for frivolous reasons by the Returning Officer which should be recounted since the margin by which the petitioner was defeated was very narrow, being only 11 votes. Since 138 votes were scrutinized by an order of the court, it would be appropriate to reproduce the said report hereunder: “In compliance of the Hon’ble Court order 20.05.2008 passed in election petition 01/2007 Teerath Singh Rawat V. Sri Yashpal Benam the box containing the ballot papers was opened in presence of Sri Tirath Singh Rawat, Sri Ashok Agarwal, ld. Counsel for the petitioner, Sri Yashpal Benam and Sri Ashok Bisht, ld. Counsel for the returning candidate. The seal was found intact and no objections were raised. One sealed envelope was recovered from the box and after opening the sealed envelope 138 postal ballot were taken out. After scrutinizing them, 54 ballots were found without any declaration form (13-A). Two declaration forms (13A) were recovered without any postal ballots. Four postal ballots were recovered which were not related to the Pauri Constituency. Nine postal ballots were enclosed with the blank declaration form (13-A). Regarding these 67 ballots there is no dispute between the parties that these ballots cannot be taken into counting. 16 ballots were recovered with declaration form (13-A) signed only by the attesting officer and not by the elector. Ld. counsel for the petitioner want to submit regarding these declarations before the Hon’ble Court. There were 31 ballots which were annexed with the declaration form (13-A) but the form (13-A) were signed by the elector only and were not attested by the attesting officer. Ld. Counsel for the petitioner wants to submit before Hon’ble Court regarding these declaration forms. Ld. counsel for the petitioner want to submit regarding these declarations before the Hon’ble Court. There were 31 ballots which were annexed with the declaration form (13-A) but the form (13-A) were signed by the elector only and were not attested by the attesting officer. Ld. Counsel for the petitioner wants to submit before Hon’ble Court regarding these declaration forms. The remaining 24 postal ballots were examined individually as under as these ballots were annexed with the declaration forms: S. No. Ballot No. Dispute in Form 13-A (Declaration Form) 01. 1183 No signature of elector at the space provided. 02. 1429 -do- 03. 1770 -do- 04. 0671 No report of RO regarding rejection, form 13A signed by the elector and attesting officer but not duly filled. 05. 0673 RO reported that serial no. is defective/different. At the face of the declaration serial no. is left blank. At blank opposite side SN is mentioned 92. 06. 1447 Signed by the elector and attesting officer though designation and other details not filled in the attestation form. 07. 2233/200 Signed by the elector and attesting officer but serial (form no.) no. differs. 08. 1262/0551 -do- 09. 0033 Ballot received without closed envelope. 10. 0034/1130 Signed by the elector and attesting officer but serial no. differs. 11. 1696/2039 -do- 12. 610/1898 -do- 13. 2312/228 -do- 14. 0414/1960 Signed by the elector and attesting officer but serial no. differs. 15. 2089/40 -do- 16. 1728/1425 -do- 17. 2201/962 -do- 18. 0663 Ballot received without closed envelope. Declaration form signed by elector and attesting officer but attestation form not duly filled. 19. 1335 Signature of attesting officer not at proper place and attestation form not duly filled. 20. 2040 There is no signature of elector at the space provided but petitioner impress that the signature is there. 21. 2215/02 Signed by the elector but signature of the attesting officer is not at the space provided. Sr. No. of the ballot and form also differ. 22. 207 Signed by the elector and attesting officer but attestation form not duly filled. 23. 1354 -do- 24. 1128/605 Form signed by the elector and attesting officer but attestation form not duly filled and serial no. also differs. After scrutinizing these all ballots, these were again kept in separate envelope (total no. in 6) and again sealed in the presence of both the parties and learned counsels for the parties. 23. 1354 -do- 24. 1128/605 Form signed by the elector and attesting officer but attestation form not duly filled and serial no. also differs. After scrutinizing these all ballots, these were again kept in separate envelope (total no. in 6) and again sealed in the presence of both the parties and learned counsels for the parties. The report is submitted to Hon’ble Court. Sd/- Registrar (Judicial)” 27. The Registrar (Judicial) has given a concise statement for the rejection of the votes. From a perusal of the report, one finds that 54 postal ballot papers were found without any declaration form. Consequently, as per Rule 54-A (4), these postal ballot papers cannot be taken into consideration and were rightly rejected. The signature of the elector is required to be attested by the attesting officer and non compliance resulted in the rejection of the postal ballot papers. Consequently, 54 postal ballot papers which were received without a declaration form were rightly rejected. The report further indicates that two declaration forms were received but without any postal ballot papers in cover B. Consequently, these two declaration forms were rightly rejected. The report further suggests that 4 postal ballot papers did not relate to the Pauri Constituency. The court finds that these 4 postal ballot papers, which did not relate to the Pauri Constituency, were rightly rejected. The report further indicates that 9 blank declaration forms were sent along with the postal ballot papers. These declaration forms were not signed by the elector. In the absence of not filling the declaration form and not having it attested, the court is of the opinion that the 9 postal ballot papers were rightly rejected. 28. The Registrar (Judicial) in his report further submitted that 16 declaration forms were signed by the attesting officer but the said declaration form did not contain the signature of the elector. 28. The Registrar (Judicial) in his report further submitted that 16 declaration forms were signed by the attesting officer but the said declaration form did not contain the signature of the elector. The learned counsel for the petitioner, in this regard, submitted that the failure of the elector to place his signature on the declaration form was only a clerical error which by itself was not sufficient to reject the said postal ballot papers since the elector had already given his vote, which was kept in cover B. The learned counsel submitted that the intention of the voter has to be ascertained and that the postal ballot papers should not be rejected on a mere technicality, on the ground that the declaration form did not contain the signature of the elector. In this regard, the learned counsel placed reliance upon the decision of Supreme Court in Era Sezhiyan Vs. T.R. Balu, AIR 1990 SC 838 wherein the Supreme Court held that the primary task of the court in a case where the question is whether the ballot paper is invalid is to ascertain the intention of the voter which has to be applied. In the light of said decision, the learned counsel submitted that in order to ascertain the intention of the voter, the postal ballot paper in cover B should be opened and his intention should be seen by counting the votes. 29. The contention of the petitioner appears to be attractive but on a closer scrutiny, the court finds that the said contention cannot be accepted. Sub clause (4) of Rule 54-A of the Rules gives a positive mandate that if declaration form is not signed and attested, the same shall be rejected. The genuineness of the postal ballot paper has to be scrutinized strictly and there has to be a strict compliance of the Rule. The elector is not present before the polling officer and in order to ascertain the identity of the elector and in order to ensure that the genuine elector has signed the declaration form, his identity is required to be identified and his signature has to be attested by the attesting officer. This is a salutary provision framed deliberately in order to safeguard that the postal ballot paper is signed by the genuine elector and that the postal ballot paper does not fall into wrong hands. This is a salutary provision framed deliberately in order to safeguard that the postal ballot paper is signed by the genuine elector and that the postal ballot paper does not fall into wrong hands. The declaration form in Form 13A and instructions in Form 13D gives a clear mandate not only to the elector to sign in the presence of an attesting officer but also gives a mandate to the attesting officer to ensure that he has identified and is satisfied that the person who has signed is the correct voter. 30. In the light of the aforesaid, 16 declaration forms which did not contain the signature of the elector could not be taken into consideration and the mere fact that the attesting officer had placed his signature is of no value. The attesting officer was required to identify and attest the signature of the elector, which in the present case had not been done. The court consequently, holds that the 16 ballot papers, which did contain the signature of the elector in the declaration form 13A was rightly rejected and could not be considered for counting. 31. 31 ballot papers were rejected on the ground that the declaration form 13A was signed by the elector but was not attested by the attesting officer. In this regard, the learned counsel placed reliance on various decisions of the Supreme Court, namely, 2003 (6) SCC 452, Jibontara Ghatowae Vs. Sarbananda Sonowal and others and 1984 (1) SCC 91 Arun Kumar Bose Vs. Mohd. Furkan Ansari and others, in which it was held that a mistake on the part of the Presiding Officer in not placing his signature on the ballot paper could not result in the rejection of the vote. The learned counsel also placed reliance upon AIR 1975 SC 693 S. Baldev Singh Vs. Teja Singh Swatantra (Dead) and others wherein the Supreme Court held that the absence of the signature of the Presiding Officer on the ballot paper was only a formal defect, which could not be made a ground for the rejection of the ballot paper. The submission of the learned counsel for the petitioner again cannot be accepted. The decisions cited are totally distinguishable and are not applicable to the case at hand which relates to the rejection of the postal ballot papers. The submission of the learned counsel for the petitioner again cannot be accepted. The decisions cited are totally distinguishable and are not applicable to the case at hand which relates to the rejection of the postal ballot papers. In the decisions cited by the learned counsel, the voter was present before the Presiding Officer at the polling station and had issued the ballot paper but the Presiding Officer failed to put his signature on the ballot paper. It was held that the fault in not putting the signature lay with the Presiding Officer and for such a defect, the ballot paper could not be rejected. 32. In the present case, the circumstances are different. There is mandatory requirement under Rule 54-A, namely, that the elector has to sign in the presence of the attesting officer and that the elector is also required to identify himself to prove that he is the genuine voter. If this is not done then any one who procures the postal ballot papers could place his signature and send it to the Returning Officer. One of the test of finding out the genuineness is, the attestation of the elector before the attesting officer. On the polling station, the voter is present in person and identifies himself but the elector of the postal ballot paper is not present before the Presiding Officer and / or the Returning Officer and therefore, the attesting officer is not only required to attest the signature, but is also required to identify the person. In the absence of the attestation made by the attesting officer, the postal ballot paper could not be treated to be a valid ballot paper. The court consequently holds that the Returning Officer had rightly rejected these 31 postal ballot papers. 33. This leads to the remaining 24 postal ballot papers. In the report of the Registrar (Judicial), the ballot papers at serial no. 1, 2 and 3 indicates that there are no signatures of the elector. Consequently, the declaration forms are defective and cannot be considered and were rightly rejected. 34. The ballot papers at serial no. 4, 6, 18, 19, 22, 23, 24 have been rejected on the ground that the declaration form had not been duly filled. 1, 2 and 3 indicates that there are no signatures of the elector. Consequently, the declaration forms are defective and cannot be considered and were rightly rejected. 34. The ballot papers at serial no. 4, 6, 18, 19, 22, 23, 24 have been rejected on the ground that the declaration form had not been duly filled. The declaration form are required to be filled up with all the particulars such as the serial number, the signature of the elector, the signature of attesting officer, his designation, his address, date, etc. In the absence of such information not being provided, the Returning Officer would be justified in rejecting the ballot paper. Let us take an example. Supposing, the attesting officer does not provide his designation and address. The Returning Officer would be at a loss to know as to whether attestation has been done by a person competent and authorized to do so. The designation, seal, etc. plays an important part in considering the genuineness of the person attesting the signature of the elector. Consequently, the court holds that if the declaration form has not been duly filled, it becomes substantially defective and leads to the rejection of the ballot papers. The court therefore, holds that the Returning Officer was justified in rejecting these ballot papers. 35. Ballot papers at serial no. 5, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 21 and 24 have been rejected on the ground that the serial number of the ballot paper which is mentioned in the declaration form 13A was different from the serial number mentioned in the cover in Form B. In this regard, the learned counsel placed reliance on paragraph 11.1 of the Handbook for Returning Officers 2006 issued by the Election Commission of India which relates to the dispatch of postal ballot papers for other voters. For facility, paragraph 11.1 is extracted hereunder: “You will have to send to each voter a form of declaration (Form 13-A), a smaller cover containing the postal ballot paper (Form 13-B), a large cover addressed to yourself in Form 13-C (no postage to be affixed on this cover) and a copy of the printing instructions to voters in Form 13-D. Then, those will be placed inside an outer cover and sent to each voter by ordinary post under certificate of posting. Before you send off these documents to any elector remember to fill up in ink correctly in Forms 13-A and 13-B the serial number of the connected postal ballot paper. This is very important as at the time of counting of votes you will have to compare these numbers on the Forms 13-A and 13-B and see that they tally, if they do not tally in the case of any voter, the postal ballot paper will have to be rejected.” 36. These instructions provide that the Returning Officer is required to fill the serial number of the ballot papers on the declaration Form 13-A and the cover of Form 13-B. According to the learned counsel for the petitioner, a duty is cast upon the returning officer. If the serial number is different in the declaration form 13-A and in the smaller cover 13-B, the fault is not of the voter but is of the Returning Officer and consequently, such vote should be counted since the voter was not at fault. 37. The court has held earlier that there must be a concise as well as precise statement of material facts in the election petition and such material facts should thereafter be proved by cogent evidence. On mere general allegations, which are vague and ambiguous, the court cannot direct a recount. In the present case, the only allegation made was that the declaration form did not contain the signature of the Commandant and that the signature of the Commandant not at the appropriate place and that his seal was also missing. 138 votes has been scrutinized by the court and this allegation, namely, that the serial number of the ballot paper differed in the declaration form and in cover B has not been specifically pleaded by the petitioner. The Supreme Court in V.S. Achuthanandan (supra) has clearly held that the election petitioner must place on record a concise statement of material fact for justifying a recount. The petitioner and his agent were present during the counting of the postal ballot papers. They were aware of the reasons of the rejection of the postal ballot papers. They knew precisely the grounds on which the ballot papers were rejected. Consequently, such material averments ought to have been pleaded in the petition, which the petitioner has miserably failed to do so. They were aware of the reasons of the rejection of the postal ballot papers. They knew precisely the grounds on which the ballot papers were rejected. Consequently, such material averments ought to have been pleaded in the petition, which the petitioner has miserably failed to do so. However, the doors of justice cannot be shut and a person seeking recourse for a recount should be afforded an opportunity justifying the circumstances for the recounting of such votes which have been rejected. When the votes were scrutinized again by an order of the court in the presence of the parties, such reasons became known to the petitioner, which he could raise when the court invited objections. Thereafter, the remaining evidence of the witnesses of the petitioner as well as of the defendant were recorded but, surprisingly, no such evidence came forward from any of the witnesses of the petitioner as to why these ballot papers were rejected on account of the difference in the serial number. The petitioner could have re-examined the Returning Officer again and should have accosted him as to whether it was a requirement as per instruction 11.1 of the Handbook of the Returning Officer to enter the serial number in the declaration form as well as in cover B. The Returning Officer should have been accosted with the facts as to whether he had entered the serial number of the postal ballot papers or not. No evidence has come forward to the effect that the Returning Officer had entered the serial number in the declaration form as well as in cover 13-B nor any evidence has come forward otherwise. In the absence of any pleadings being led on this aspect and in the absence of any evidence being brought on record, the court is unable to appreciate the submission of the learned counsel for the petitioner that these votes could not be rejected on the ground that the serial number was different. Sub-clause (4) of Rule 54-A of the Rules clearly states that if the serial number of the ballot paper as entered in it, differs from the serial number endorsed on the cover in form 13-B, in such a case, the cover shall not be opened and that the Returning Officer after making appropriate endorsement shall reject the ballot paper contained therein. 38. 38. In the light of the aforesaid, the court is of the opinion that the postal ballot papers were rightly rejected on the ground that the serial number was different. The court does find any error in it. Consequently, the court holds that the counting of the postal ballot papers was made in accordance with Rule 54A of the Conduct of Election Rules, 1961 and that 156 postal ballot papers were rightly rejected in accordance with the reasons mentioned in sub clause (4) of Rule 54-A and sub clause (8) of Rule 54-A of the Rules. Issue nos. 1 and 4 are accordingly decided. 39. In view of the aforesaid, the remaining postal ballot paper does not require any further scrutiny since it would have no bearing with the result of the election. 40. In the light of the aforesaid, the court does not find any merit in the election petition and is accordingly, dismissed. The Registry is directed to return the postal ballot papers to the District Magistrate concerned at the earliest. Parties will bear their own cost.