Judgment :- PATHERYA, J. 1. This Election Petition has been filed to challenge the parliamentary election in respect of the Balurghat Parliamentary Constituency. 2. PETITIONERS CASE 2.1 The case of the petitioner is that the election in respect of the said Constituency was held on 30th April, 2009 and result declared on 16th May, 2009. The petitioner lost by 5005 votes. Although the Election Commission was made a party to the said petition its name has been deleted. The written statement filed by the respondent No.1 can be split into denials and assertions. The respondent no. 1 was neither examined nor cross-examined therefore the averments made has not been proved. The procedure to be followed in holding of election is laid down in the rules and is mandatory in nature. The cross-examination has been mainly based on no complaint made at the relevant point of time. Documents 1 to 15 have been admitted by consent. The Rules specifically provides for the layout of the Counting Hall, which in the instant case has not been strictly followed. The first grievance is that Form 17C Part-II was defective and it is only when the defect was brought to the notice of the officer that the same was rectified. There has been manipulation with the Election Voting Machine (EVM). The EVM was to be checked by a mock poll and certificate issued. Such mock poll was not conducted on the date of election at the polling booth. The black board which was to display the result after counting was also not present. There was no announcement of the result over the microphone or public address system and no computer for preparation of the Excel sheet by the Assistant Returning Officer. No Additional Staff of the Observer was deployed, in fact the Observer left mid way. No gazetted officer was deployed and although the proforma of the result sheet is to be signed by the Observer and the Returning Officer no proforma was declared. There was no cross checking nor any random check by the Observer’s staff of any two EVM. These exercises were to be undertaken as per the Rules to be followed. In the counting hall in fact after the 8th round a complaint was made to the Returning Officer and a request for recounting was also made but there was no response. These exercises were to be undertaken as per the Rules to be followed. In the counting hall in fact after the 8th round a complaint was made to the Returning Officer and a request for recounting was also made but there was no response. 2.2 After preparation of Form 17C Part-I on the polling day and Form 17C Part-II on the counting date Form 20 Part-I is prepared. The said Form 20 Part-I is to be signed by the candidate before the result is declared but such form was not received or signed by the petitioner. In fact postal ballots which had been received were also wrongly rejected. 2.3 The grounds for challenge have been proved by evidence in examination and cross-examination. The Counting Supervisor, the Assistant Returning Officer and the Observer are to follow specific instructions. For lapse of following such specific instructions the election in respect of the said constituency has been vitiated. 2.4 In the written statement besides denial it has been specifically pleaded that the procedure which was to be followed were followed, therefore, the question of accepting the allegation did not arise. Assertions have also been made with regard to the instructions followed but none of the assertions have been proved by evidence. The first complaint was lodged with the Returning Officer on 16th May, 2009 i.e. on the date of counting. On the same date a complaint was also lodged with the Observer and on 17th May, 2009 a complaint was lodged with the Election Commission who did not personally receive such complaint. 2.5 There has been infraction of election rules, in preparation of Form 17C Part-I and Part-II. The noting in Form 20 Part-I is not a correct reproduction of Form 17C Part-II. In Form 20 Part-I the polling station wise counting is recorded. The role of the Observer and the functions of the Returning Officer and the Assistant Returning Officer has been specifically spelt out by the plaintiff in evidence. Volume-II of the Hand book relating to Returning Officers and in particular Rule 23.3 envisages announcement of votes or writing of such votes on a black board. Rules 18.20 and 18.22 of Volume I of the Handbook for Candidates contemplates installation of computer in the counting hall and announcement of results table wise round wise counting of votes through the public address system. Rules 18.20 and 18.22 of Volume I of the Handbook for Candidates contemplates installation of computer in the counting hall and announcement of results table wise round wise counting of votes through the public address system. As there was no microphone, there has been noncompliance as no announcement could be made over the public address system. The counting process is to monitored and supervised by the Observer on the report of the Assistant Returning Officer, Returning Officer and Additional Staff of the Observer till the final result is announced. Form 17C Part-II though signed does not assume finality and is prepared on counting day. It is by Form 20 Part- II that the final result is declared. Form 17C Part-II is prepared on the basis of EVM display and the display on the Black Board. The Black Board was nowhere in the counting hall and did not display round wise table wise counting of votes. From Exhibit 19 of the Judges brief of documents it will be evident that only round wise display was noted. No display was made polling station wise or constituency wise. The layout of the counting hall has been provided in the Handbook for Returning Officers and the blackboard has been specifically mentioned therein. In Rule 23.3 of the same Handbook mention has also been made regarding announcement and noting of entries in the blackboard, to enable cross-check of the entries made by the agents or to enable noting by them. In the absence of the aforesaid the said election is vitiated. A mock poll is held on the election day and certificate issued by the Election Commissioner to inform all that the mock poll was satisfactory or not. 2.6 The presence of microphone will be evidenced from the requisition slips. Provisions for cross-checking have been made in Rules 24.2 and 24.3 of the Handbook for Returning Officers so also Rules 18.20 and 2.25 and 2.26 of the Candidates Handbook all of which call for cross-checking. Rule 18.20 of the Candidates Handbook provides for double checking by computers. In the cross-examination the cross-checking and double cross-checking procedure has been explained by the plaintiff in questions 357, 358, 363 and 367. He is the only witness examined. Rule 18.22 provides for tallying the figures of votes and declaration of result. None of the procedures laid down nor the rules have been followed. In the cross-examination the cross-checking and double cross-checking procedure has been explained by the plaintiff in questions 357, 358, 363 and 367. He is the only witness examined. Rule 18.22 provides for tallying the figures of votes and declaration of result. None of the procedures laid down nor the rules have been followed. Therefore, the entire process has been vitiated. 2.7 The manipulative conduct of the respondent is also evident as initially an incorrect Form 17C Part-I was prepared and it is only after an objection was raised that the same was corrected and defective EVM replaced only at 1 p.m. although the polling had started at 8 a.m. and the said cannot be disputed by any of the parties. No separate room was provided to the Returning Officer and entry to the polling room was restricted. The Rules have been violated and as provided in Section 100 (d)(iii) and (iv) the inaction mentioned above will materially affect the result and calls for setting aside of the election process. For the said proposition reliance is placed on 2009 10 SCC 541 and AIR 1975 SC 91. Neither the Returning Officer nor the Observer has been called as a witness as they would have deposed against the respondent. Section 98, so also Section 100 (d)(iv) and Section 101 be considered. Reliance is placed on AIR 1964 SC 1249 . 2.8 Out of a total of 1287 postal ballots, 596 have been rejected. Such rejection was wrong as Rule 14.5 of the Handbook of Returning Officers specifically states that while rejecting ballot papers, the Returning Officers must not be too technical. The cross-examination was restricted to date of complaint and as the complaint was made on the date of counting i.e. 16th May, 2009 no importance should be given to it. This can be no reason for allowing an incorrect process to be upheld. For all the said reasons, therefore, this election petition be allowed and election held for the concerned parliamentary constituency be set aside. 3. RESPONDENTS CASE 3.1 Counsel for the respondent in opposing the said petition submits that a case must be made out in the election petition. As the election procedure is participatory in nature the area of difference has been minimized. The layout of the counting hall was made strictly as directed and therefore no complaint could have been made in respect thereof. As the election procedure is participatory in nature the area of difference has been minimized. The layout of the counting hall was made strictly as directed and therefore no complaint could have been made in respect thereof. The name of Counting Supervisors and Assistants for secrecy purpose was not disclosed. 3.2 It has been averred by the petitioner that neither the candidates nor their representatives were allowed to check the control unit of the EVM. Such check or recheck was rightly not allowed. Rule 2.23 of the Candidates Handbook provides for the presence of the Observers at the time of counting. Counting took place on 16th May, 2009. The first complaint was written and made after the 8th round and not prior thereto. The complaint on 17th May, 2010 is after the election result was declared on 16th May, 2009. Recounting is only done after the entire counting is over and although according to the petitioner rigging occurred on 16th May, 2009 no complaint was made then nor any allegation levelled against the Observer. The complaint was only against the Returning Officer and the Assistant Returning Officer. There is no complaint to initiate disciplinary action against the said officers. In fact in the procedure of counting strictness was observed and Clause 26.1 deals with recounting of votes. In the event the petitioner was in any way aggrieved a complaint ought to have been made for recounting at the correct time as at this stage no recounting can be called for. In his representation to the Chief Election Commission on 17th May, 2009, the petitioner did not mention that recounting had been sought for from the Returning Officer and that the said had not been considered. The allegation with regard to EVM and black board are not relevant as Form 17C Part-II has been accepted by the petitioner as will appear from the answer to question 255. The procedure was known to the petitioner but no objection was raised at the relevant time. As held in 1999 2 SCC 217 recounting is not as a matter of right. In the case of Uday Chand Suraj Singh reported in 2009 10 SCC 170 the scope of Rule 63 of the 1961 Rules has been considered. Therefore, no order be passed. 4. As held in 1999 2 SCC 217 recounting is not as a matter of right. In the case of Uday Chand Suraj Singh reported in 2009 10 SCC 170 the scope of Rule 63 of the 1961 Rules has been considered. Therefore, no order be passed. 4. PETITIONER-IN-REPLY 4.1 In reply counsel for the petitioner submits that the case of the respondent is that as Form 20 Part-I has been signed by the petitioner no challenge can be thrown in this petition. This is an incorrect statement as in the cross-examination in answer to question 451, it has been specifically stated by the petitioner that Form 20 Part-I was not signed by him. In fact Form 20 Part-I need not be signed by a candidate or his agent. Rule 63 also provides that the said Form is to be signed by the Returning Officer. It has also been contended that Form 17C Part-II has been signed by the petitioner, therefore, the counting process cannot be challenged. The said Form 17C Part-II is not the final form if the said Form was final then no challenge would be provided in Rule 63. 4.2 It has also been urged by the respondent that no complaint was made to the Election Commission. The 1951 Act does not provide for any redressal by the Commission but contemplates decision by the High Court. 4.3 Two complaints were made one on the date of counting and one thereafter. According to the respondent the complaint filed on 17th May, 2009 was beyond the time and the grievance set out in the complaint of 16th May, 2009 does not find place in the complaint dated 17th May, 2009. No argument has been advanced on the complaint of 16th May, 2009 and the argument is in respect of the complaint made on 17th May, 2009. According to the respondent there is no provision for complaint after the result has been declared and therefore the complaint must be rejected. 4.4 The Observer’s role and his absence has been blown out of proportion by the petitioner according to the respondent. It has been asserted that there was a black board in the counting hall and cross-checking was done. The respondent did not offer himself for cross-examination and no positive evidence has been given. 4.4 The Observer’s role and his absence has been blown out of proportion by the petitioner according to the respondent. It has been asserted that there was a black board in the counting hall and cross-checking was done. The respondent did not offer himself for cross-examination and no positive evidence has been given. The restricted entry to the compilation room has been accepted and therefore, supports the case of the petitioner and his evidence. That there was no room of the Returning Officer which is mandatory has also been admitted. Form 20 Part-I is prepared at the compilation stage and Form 20 Part-II evidences the grand total. To consider the question of disparity of the votes EVM ought to be produced as EVM is the foundation as paper handling can result in human error. The counting agent was not called as a witness. Rule 63 postulates recounting, therefore, the submission that the complaint on 16th May, 2009 cannot be supported is incorrect. Rule 63(3) and (4) has been violated as no decision was taken on the complaint. It is not the respondent Commission who is to consider the legality of the complaint but the Returning Officer. 1999 2 SCC 217 is distinguishable as in that case a preliminary objection was raised and the same decided. There was no decision on contest. 2009 10 SCC 170 is distinguishable in view of Para-13 so also AIR 1975 SC 915 in view of Para 25. Therefore, orders be passed as sought. 5. CONCLUSION 5.1 Having considered the submissions of the parties Section 100 of the 1951 Act lays down the grounds for declaring an election to be void. The grounds applicable in the instant case are Section 100(d)(iii) and (iv). 5.2 By virtue of Section 100(d)(iv) non-compliance of Rules under the 1951 Act will vitiate the election process. It is true that a certain procedure is to be followed and if such procedure is not followed the election of a returned candidate can be declared void. 5.3 The question that arises is whether the procedure contemplated was followed or not and whether the same was brought to the notice of the Returning Officer. This is of relevance as on an earlier occasion the lapse in procedure was brought to the notice of the officer by the petitioner and the same was rectified. 5.3 The question that arises is whether the procedure contemplated was followed or not and whether the same was brought to the notice of the Returning Officer. This is of relevance as on an earlier occasion the lapse in procedure was brought to the notice of the officer by the petitioner and the same was rectified. This has been admitted by the petitioner in evidence as follows:- “Q. 79. In the instant case was any mock polling of EVM taken place?/ Yes, but the mock polling was not carried out properly at Balurghat Parliamentary Constituency as per the instructions that had been given by the returning officer to the candidates. Q. 80. You deposed that mock polling was not done in all the polling stations of Balurghat constituency. With regard to the same did you raise any protest or make any complaint? / Yes, we complained. Q. 81. To whom such complaint was made? / We lodged a complaint with the returning officer. Q. 82. Was the complaint made in writing or orally? / First orally and then in writing. Q. 83. (Shown a copy of the letter dated 30th April, 2009 being PD-16 appearing at page 104 of Judge’s brief of document) Is this the complaint you are referring to? / This letter was sent to the observer. Q. 88. Please come back to PD 16 being the letter dated 30th April, 2009 and tell whether any step was taken after this complaint was lodged by you to the observer ?/ Yes, the observer immediately sent an instruction and asked the machine at booth no. 50 to be replaced. Q. 89. At what hour of the day this replacement took place? / It was between 12 noon and 1 PM in the afternoon.” 5.4 16th May, 2009 was the date of counting and Rule 63 of the 1961 Rules contemplates a written application for recount of votes after counting is complete and votes polled by each candidate has been announced. The application must state the grounds on which the recount is sought. 5.5 It is true that on 16th May, 2009 an application in writing was made to the Returning Officer and the same was also received by him but such complaint was made after the 8th round as will appear from the petitioner’s answer to Questions 209 and 210. “Q. 209. 5.5 It is true that on 16th May, 2009 an application in writing was made to the Returning Officer and the same was also received by him but such complaint was made after the 8th round as will appear from the petitioner’s answer to Questions 209 and 210. “Q. 209. Did you make any complaint at any point of time with regard to the infirmity in displaying the votes received by each of the candidates in the notice board? / Yes, that is why I had made an application for recounting at the end of the 8th round. Q. 210. (Shown a copy letter dated 16.5.2009 being PD 22 appearing at page 111 of the Judge’s Brief of documents) Is this the complaint you are referring to? / Yes.” 5.6 Another complaint was made on 17th May, 2009 to the Election Commission but such complaint is of no relevance as the Rule does not contemplate any complaint to him. 5.7 Therefore, the complaint of 16th May, 2009 gains relevance. The grounds on which recounting has been sought as set-out therein is as follows:- (i) EVM is improper and a thorough scan of the same is needed. (ii) Postal ballot has not been counted properly. (iii) Total polled votes do not tally with the number of votes obtained by respective candidates. 5.8 Rule 63 of the 1961 Rules reads as follows:- “Re-count of votes. (1) After the completion of the counting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. (2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. (3) XXXXXXX (4) XXXXXXX (5) XXXXXXX (6) XXXXXXX” 5.9 Therefore, any application for recount is to be made after the result is recorded in Form 20 and announced. 5.10 According to the petitioner no announcements was made as per the Regulations after each round nor were votes displayed on the blackboard. 5.11 In answer to Question 207 the petitioner has admitted that an announcement was made after the 8th round - “Q. 207. 5.10 According to the petitioner no announcements was made as per the Regulations after each round nor were votes displayed on the blackboard. 5.11 In answer to Question 207 the petitioner has admitted that an announcement was made after the 8th round - “Q. 207. When did you notice that the notice board was not displaying the result table wise, polling stating wise, round wise and assembly segment wise? / I first came to know during the 6th round and during the 8th round I myself went and saw it. When I heard an announcement over the microphone after the 8th round I went to tally with this notice board and that is the time I saw this.” 5.12 Regulation 23.3 of the Handbook of Returning Officers contemplates either announcement or writing on black board to cross-check the entries. 5.13 In Paragraph 16 of the Election Petition that announcement was made over the loudspeaker has been admitted. 16. “From the compilation room, the Returning Officer announced by the loudspeaker from time to time that either the petitioner or the respondent no. 1 was trailing by a number of votes. No break up of the counting of votes on the basis of table / polling station-wise of the Assembly segments-round-wise was either written in the notice board or announced through public address system by the Returning Officer” 5.14 In answer to question 207 the plaintiff has admitted the existence of a microphone and announcement thereon after the 8th round. Therefore, to presume that in spite of existence of a microphone no announcement was made thereon for purposes of cross-checking is unbelievable. 5.15 In the event the microphone announcement was made the need of displaying the votes polled on the black board was not necessary. 5.16 Even if it is accepted that the result displayed after the 8th round was not correct or did not tally with the display on the notice board, all that the candidate or his counting agent was required to do is to press the Result button of the control unit for re-verification as per Rule 26.1 of the Handbook for Returning Officers. It appears that the said was not done by either the plaintiff or his counting agent. 5.17 Clause 26 of the Handbook for Returning Officers deals with Recount. Clause 26.3 postulates preparation of Form 20 and thereafter an announcement. It appears that the said was not done by either the plaintiff or his counting agent. 5.17 Clause 26 of the Handbook for Returning Officers deals with Recount. Clause 26.3 postulates preparation of Form 20 and thereafter an announcement. After the announcement is made the Returning Officer is to pause to enable either the candidate or his counting or election agent to raise an objection. It is not the case of the petitioner that his agent raised an objection or sought time to raise an objection and that the same was not allowed. This is not reflected in the letter dated 16th May, 2009 either. 5.18 Recount cannot be allowed for the mere asking. Therefore, it is important to consider lapse if any in procedure as Section 100(d)(iv) of the 1951 Act accepts acts contrary to Regulations or Orders made under the 1951 Act to justify setting aside an election. 5.19 While there is no dispute with regard to EVM displays the petitioner is aggrieved with lack of procedure followed. According to him there was no checking or crosschecking by announcement of the result loudly or by using loudspeakers. No excel sheet was prepared in order to tally the data entered as per Regulation 24 of the Handbook for Returning Officers. 5.20 In the election petition filed several grounds for lapse in procedure has been taken none of which has been taken in the complaint dated 16th May, 2009. 5.21 If announcements were made over the microphone after each round as was done till the 8th round as will appear from the answer to question No. 207, the complaint it appears from the deposition of the plaintiff was made after the 8th round i.e. much before the completion of counting and recording in Form 20. Therefore, the request for re-count was premature. 5.22 There is no complaint as per Rule 63(1) or (2) of the 1961 Rules or Regulation 26.2 of the Handbook for Returning officers. 5.23 Although a complaint was made with regard to improper registration of postal ballot the same was made after the 8th round of counting and not as per Rule 63 of the 1961 Rules or Regulation 26 of the Handbook for Returning Officers. 5.23 Although a complaint was made with regard to improper registration of postal ballot the same was made after the 8th round of counting and not as per Rule 63 of the 1961 Rules or Regulation 26 of the Handbook for Returning Officers. As per Regulation 25.6 of the Handbook for Returning Officers the total number of valid postal ballots received by each candidate is to be calculated and entered in Part-II of Form 20 and not in Part-I of Form 20. The complaint was made after the 8th round, therefore, the petitioner could not have any knowledge of the number of postal ballots rejected or accepted. 5.24 Regulation 24.2 of the Handbook for Returning Officers gives the Returning Officer the option to tally the total manually made by entering data in an Excel sheet. Similarly Regulation 18.20 of the Handbook for candidates contemplates parallel checking by a computer. 5.25 Regulation 18.21 contemplates next round of counting after all tables have finished counting and the result sheets have been accepted by the Assistant Returning Officers. 5.26 As the table-wise-round wise counting was announced through a loudspeaker the candidate viz. the petitioner or his counting agent had an opportunity to detect the alleged manipulation at every stage and on such detection was entitled to make a complaint after the result had been declared but the same was not done. 5.27 The 1961 Rules and the Regulation framed have both given an opportunity to the candidate and the counting agent to file an application, after the counting is over but the said opportunity was not availed by the petitioner. 5.28 In the event there was a lapse in procedure the petitioner ought to have brought it to the notice of the Returning Officer. 5.29 The case of securing more votes is based on the “strong belief” of the counting agents of the petitioner but no complaint was made by the counting agents after the recording of votes in Part-I of Form 20 or announcement of results. 5.30 As held in 2009 10 SCC 541 materials must exist to warrant recount. In the instant case no material fact exists to warrant interference as the petitioner has admitted that the Returning Officers did call out the votes but while doing so has manipulated with the votes. If this is true then an objection ought to have been made or a complaint lodged. In the instant case no material fact exists to warrant interference as the petitioner has admitted that the Returning Officers did call out the votes but while doing so has manipulated with the votes. If this is true then an objection ought to have been made or a complaint lodged. 5.31 There is no dispute with the proposition of law expounded in AIR 1975 SC 915 . Procedure was followed and the Handbook for Returning Officers gave him the option to prepare a parallel Excel sheet, therefore, non-preparation cannot be held to be a deviation from procedure. 5.32 [1999] 2 SCC 217 is not applicable to the facts of the case as the said decision is based on a preliminary objection taken. 5.33 In view of 2009 10 SCC 170 recount is not to be allowed as a matter of course as it affects the secrecy of ballot and in the instant case no strong prima facie case has been made out to suspect the purity, propriety or legality of the election process. Accordingly, this election petition warrants no order and is dismissed. Later: Interim orders, if any, shall stand vacated. Urgent Photostat certified copy of this judgment be made available to the parties, if applied for, subject to compliance of all formalities.