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2014 DIGILAW 642 (GAU)

Salma Jesmin v. Mazibur Rahman

2014-06-19

BROJENDRA PRASAD KATAKEY

body2014
Judgment Brojendra Prasad Katakey, J. 1. The petitioner, who was a candidate nominated by Indian National Congress (INC) to contest the election from No. 85 Rupahihat Legislative Assembly Constituency (LAC), has filed the present petition under Section 80 and 80A of the Representation of People Act, 1951 (in short the 1951 Act), presented under Section 81 of the said Act, questioning the legality and/or validity of the election of the respondent No. 1, who was nominated by All India United Democratic Front (AIUDF) and has been declared elected on 13.05.2011. The election petitioner has prayed for declaring the election of the returned candidate as void and to direct recount of votes, to declare the result on the basis of such recount, apart from the direction for fresh poll in polling station No. 43 of the said LAC. Pursuant to the notification issued by the Election Commission of India declaring the schedule of general election to the Legislative Assembly of Assam, the election petitioner, the respondent No. 1 and 5(five) other candidates (respondent Nos. 2 to 6) have filed their nomination papers for No. 85 Rupahihat LAC within stipulated time. While the election petitioner was nominated by the INC, the respondent No. 1 was nominated by AIUDF, the respondent No. 2 was nominated by Nationalist Congress Party, the respondent No. 3 was nominated by Bharatiya Janata Party, the respondent No. 4 was nominated by Assam Gana Parishad, the respondent No. 5 was nominated by All India Trinamul Congress and the respondent No. 6 was an independent candidate. The nomination papers of all these candidates, on scrutiny, were found to be valid and accordingly they contested the election, polling of which was held on 11.04.2011. The votes polled by the candidates were counted on 13.05.2011 and the result of the election was declared on the same day. The respondent No. 1/returned candidate having secured 44441 Nos. of valid votes polled, as against 44208 votes polled by the election petitioner, was declared elected from the said constituency with a margin of 233 votes. 2. The votes polled by the candidates were counted on 13.05.2011 and the result of the election was declared on the same day. The respondent No. 1/returned candidate having secured 44441 Nos. of valid votes polled, as against 44208 votes polled by the election petitioner, was declared elected from the said constituency with a margin of 233 votes. 2. The election petitioner though filed the election petition challenging the result of the returned candidate on the ground that the result of the election, in so far as it concerns the returned candidate, has been vitiated-(i) by discrepancies; (ii) incorrect totaling at the time of counting of votes; (iii) malfunctioning of control units of Electronic Voting Machines (EVMs) of polling station No. 6; (iv) non-closure of control units of the EVMs in respect of polling station No. 43 after completion of poll and (v) improper rejection of 18 ballots, this Court, based on the application filed by the respondent No. 1/returned candidate under Order 6 Rule 16 CPC read with Order 7 Rule 11 CPC for striking out the pleadings in the election petition as well as for rejection of the same for want of cause of action, which has been registered and numbered as Misc. Case No. 3012/2011, vide order dated 07.05.2012 strike out the pleadings relating to the malfunctioning of control units of the EVMs of polling station No. 6 and non-closure of the control units of the EVMs in respect of polling station No. 43 after completion of poll, no material facts having been pleaded and also for non-disclosure of the cause of action. Thus the election petition has been reduced to the grounds of incorrect totaling at the time of counting of votes and noncompliance of the provisions of 1951 Act and conduct of Election Rules, 1961 (in short the 1961 Rules). PLEADINGS OF THE PARTIES 3. Thus the election petition has been reduced to the grounds of incorrect totaling at the time of counting of votes and noncompliance of the provisions of 1951 Act and conduct of Election Rules, 1961 (in short the 1961 Rules). PLEADINGS OF THE PARTIES 3. The relevant pleadings of the election petitioner in the election petition, after striking out, are that:- I. At the time of counting, rejected postal ballots were not separately bundled for sealing and neither the petitioner nor her election agents nor any of the counting agents was asked to put their seal in the packet of the rejected postal ballots and at the end of counting of postal ballots, though only one postal ballot was declared to have rejected by the Returning Officer, however, while preparing the Form No. 20, prior to declaration of result, the petitioner was told by the Returning Officer that all 19 postal ballots were rejected. It has also been pleaded that there is serious noncompliance of the provisions of the 1951 Act as well as 1961 Rules in the process of counting of postal ballots. II. There were serious discrepancies in Part-I and Part-II of Form 17C of the polling stations as regards the total votes polled and because of such discrepancies, there were incorrect totaling in the round wise statement calculated on the basis of such wrong figures in Form 17C and projected in the blackboard. For the failure of the Returning Officer/Asstt. Returning Officer to correct such material discrepancies in Form 17C and the incorrect totaling therein the counting agents of the election petitioner refused to put their signatures in Form 17C after the 9th round. The election officials themselves did not put up the result of the 10th and 11th round in the blackboard, though there were in total 11 rounds of counting, which amounts to violation and non-compliance of the provisions of 1951 Act and 1961 Rules as well as the instructions of the Election Commission of India to the Returning Officer as regards the procedure laid down for counting of votes. III. III. No random verification of the counting, as required under 1951 Act and 1961 Rules, were done and no record is available with the Returning Officer or with the Election Commission as regards the round wise statement mandatorily required to be prepared, those statements though were applied for by the election petitioner and her election agents, no such copy, however, was supplied. The prayer of recount was also arbitrarily rejected. Therefore, there is clear violation and non-compliance of the provisions of 1951 Act and 1961 Rules as well as instructions to the Returning Officer by the Election Commission. IV. The Returning Officer did not follow the procedure laid down by the Election Commission in its instruction to the Returning Officer read with the provisions of Rule 63 of 1961 Rules, regarding announcement of the total number of votes polled by each candidate, as entered in the final result sheet, when the counting is complete and the final result sheet in Form 20 is prepared. Though the election agent of the election petitioner, in view of the serious defects in the process of counting, demanded recount from the Returning Officer at about 4.30 P.M. prior to the end of the count of the last round, the Returning Officer in a most mala fide manner without following the procedure stipulated, informed the election agents of the election petitioner that the result had already been declared, though at that point of time the result of 10th and 11th round had not yet been displayed in the blackboard. The election agent of the election petitioner thereafter on 14.05.2011 submitted a petition to the Chief Electoral Officer of Assam about non-consideration of his petition for recount by the Returning Officer. V. The Returning Officer has failed to perform his duties vested in him by law by rejecting the petition for recount dated 13.05.2011. The Returning Officer was biased and partisan, which is evident from the order dated 13.05.2011 rejecting the claim of the election petitioner, in spite of the fact that the same was filed at the appropriate time and the margin of difference of votes between the election petitioner and the respondent No. 1/returned candidate was narrow. VI. The Returning Officer was biased and partisan, which is evident from the order dated 13.05.2011 rejecting the claim of the election petitioner, in spite of the fact that the same was filed at the appropriate time and the margin of difference of votes between the election petitioner and the respondent No. 1/returned candidate was narrow. VI. The election agent of the election petitioner on 16.05.2011 though applied for various documents, but the same were not supplied, for which on 06.06.2011 the election petitioner, under Rule 93(2) of the 1961 Rules, filed another application before the Returning Officer to furnish her copies of Form 17C (both Part-I and Part-II), Form 20 and Form 21C, but the Returning Officer has supplied only the Form 20, despite payment of necessary fee as fixed for that purpose. VII. In view of serious violation and noncompliance of the provisions of 1951 Act, 1961 Rules and the instructions issued to the Returning Officer by the Election Commission, with regard to counting of votes, the result of the respondent No. 1/returned candidate has been materially affected. 4. The respondent No. 1/returned candidate has contested the election petition by filing the written statement. The other respondents, who contested the said election, however, did not contest the election petition. The respondent No. 1/returned candidate in his written statement has pleaded that the contents of the election petition are vague; that adequate material facts necessary to make out a case of irregularity in counting, so as to establish that the election of the returned candidate has been materially effected, have not been pleaded; that in the election petition the election petitioner has not pleaded in what manner the election of the returned candidate has been materially effected due to alleged non-compliance of the provisions of 1951 Act or the 1961 Rules or the instruction issued by the Election Commission to the Returning Officer, while specifically denying the averments made by the election petitioner in the election petition. It has also been pleaded that the counting of votes was held in absolutely free and fair manner and there was no irregularity or illegality in counting of votes, for which the respondent No. 1 having secured more votes than the election petitioner, was rightly declared elected from the constituency in question The further pleaded case of the respondent No. 1 is that as the election petitioner has lost the election by low margin of votes, she has filed the election petition with an oblique motive of harassing the respondent No. 1/returned candidate and to remain in political limelight. The respondent No. 1/returned candidate, therefore, prays for dismissal of the election petition, with cost. ISSUES FRAMED 5. Based on the pleadings and upon hearing the learned counsel appearing for the election petitioner and the respondent No. 1/returned candidate, the following issues were framed on 13.06.2012 for trial of the election petition:- I. Whether there is violation and non compliance of the provisions of Representation of the Peoples Act, 1951 and the Conduct of Election Rules, 1961 as well as the instruction of the Election Commission of India to the Returning Officers as regards the procedure laid down for counting of votes, if so, whether it has materially affected the result of the election in so far as the returned candidate/respondent No. 1 is concerned? II. Whether there is violation of provisions relating to counting, recounting and suspension in counting of votes in EVM as provided by Rules 60, 63, 66A read with Rules 55C, 56C and 57C of the Conduct of Election Rules, 1961, if so, whether the same has materially affected the result of the election in so far as the returned candidate/respondent No. 1 is concerned? III. Whether the order dated 13.5.2011 of the Returning Officer of No. 85 Rupahihat Legislative Assembly Constituency in rejecting the objection raised by the petitioner and in declaring the returned candidate/respondent No. 1 as elected is legal and valid? IV. Whether the election of the returned candidate/respondent No. 1 from No. 85 Rupahihat Legislative Assembly Constituency is to be declared void under the provision of the Representation of the Peoples Act, 1951 and whether the election petitioner is entitled to an order for recounting of votes of the said Legislative Assembly Constituency? IV. Whether the election of the returned candidate/respondent No. 1 from No. 85 Rupahihat Legislative Assembly Constituency is to be declared void under the provision of the Representation of the Peoples Act, 1951 and whether the election petitioner is entitled to an order for recounting of votes of the said Legislative Assembly Constituency? V. Whether the contents of the election petition are vague and devoid of any material facts necessary to make out a case for grant of the relief sought for in the election petition? VI. To what other relief/reliefs, if any, the parties are entitled? 6. I have heard Mr. N. Dutta, learned Sr. counsel for the election petitioner and Mr. A.K. Bhattacharjee, learned Sr. counsel appearing for the respondent No. 1/returned candidate. SUBMISSIONS OF THE PARTIES 7. Mr. Dutta, learned Sr. counsel appearing for the election petitioner, has submitted that the election petition has been filed on the ground that the result of the election, in so far as it concerns the returned candidate, has been materially effected-(i) due to incorrect totaling at the time of counting of votes and (ii) due to non-compliance of the provisions of 1951 Act and 1961 Rules, particularly Rule 55C, and the instructions to the Returning Officer by the Election Commission, relating to counting of votes, rendering the election of the returned candidate void. 8. Mr. Dutta, in support of which, referring to the evidence of PW-1, the election petitioner, submits that she could establish the serious defects in the process of counting and also demand of recount of votes by her election agent Nurul Islam (PW-2) at about 4.30 P.M., prior to the end of the counting of the last round and even before the result of 10th and 11th round has been displayed in the blackboard, which, however, was not acknowledged by the Returning Officer and only at about 5.20 P.M. the acknowledgment was given by the Returning Officer and thereafter at 6 P.M. the Returning Officer has informed the election agent that the result of the election has already been declared. It has also been submitted that the PW-2 Md. It has also been submitted that the PW-2 Md. Nurul Islam while corroborating PW-1 has deposed that he along with other candidates and their counting agents protested the discrepancies found in the counting and in fact after 9th round of counting the police and CRPF personnel were called inside the hall to control the situation, as a result of such chaotic situation the election officials themselves did not put up the result of the 10th and 11th round of counting in the blackboard and for such discrepancies the counting agents of the election petitioner refused to put their signatures in Form 17C after 9th round. Referring to the deposition of PW-2, it has also been submitted that this witness has also stated about filing of petition dated 13.05.2011 at about 4.30 P.M. demanding recount of votes and also about non-acknowledgement of the same by the Returning Officer and subsequent acknowledgment at about 5.20 P.M. 9. According to the learned Sr. counsel, PW-3 Mohidul Haque and PW-4 Asad Ali Moral have also deposed about the serious discrepancies in Form 17C and the incorrect totaling therein and also about the protest of the election agent of the election petitioner as well as the counting agents, apart from the protest of the other candidates and their counting agents relating to such discrepancies. It has also been submitted that two counting agents of the election petitioner, namely, PW-5, Mustafijur Rahman and PW-6, Md. Fazlul Haque, who were present at the time of counting, have also supported the version of the election petitioner (PW-1), the election agent (PW-2) of the election petitioner as well as PWs-3 and 4, relating to the discrepancies and also demand for recount. The learned Sr. counsel submits that though these witnesses were exhaustively cross-examined by the respondent No. 1/returned candidate, they, however, could not shake the credibility of any of the witnesses. The learned Sr. counsel, therefore, submits that the election petitioner could make out a case of recount of votes. 10. Mr. The learned Sr. counsel submits that though these witnesses were exhaustively cross-examined by the respondent No. 1/returned candidate, they, however, could not shake the credibility of any of the witnesses. The learned Sr. counsel, therefore, submits that the election petitioner could make out a case of recount of votes. 10. Mr. Dutta, relating to the contention of the election petitioner about non-compliance of the provisions of 1951 Act and 1961 Rules as well as the instruction of the Election Commission to the Returning Officer, has further submitted that the election petitioner in paragraph 5 of the election petition has specifically pleaded that the result of the election in so far as it concerns the returned candidate, is vitiated, inter alia due to non-compliance of the provisions of 1951 Act and 1961 Rules and there being clear violation of the provisions relating to counting of votes in EVM, apart from the pleadings in paragraphs 9 and 10 of the election petition relating to serious discrepancies in Part-I and Part-II of Form 17C of polling stations as regards the total votes polled in the polling stations in question. The learned Sr. counsel, referring to the deposition of PW-7, the Returning Officer, has also submitted that this witness has admitted that though Exts.-13, 14 and 15, which contain a number of 17C forms, in these bunch of Form 17C, Part-I of Form 17C, in respect of polling station Nos. 46, 94 and 115 are not available and in those places the Presiding Officers' diaries in respect of those polling stations are attached. The learned Sr. counsel, therefore, submits that it is evident from the deposition of the Returning Officer (PW-7) that the mandatory provision relating to the counting of votes was not followed, as regards to the polling station Nos. 46, 94 and 115, as Part-I of Form 17C were not available on the date of counting, though Part-I and Part-II of Form 17C are required to be compared and the satisfaction by the Returning Officer in that regard is required to be recorded before the counting starts. The learned Sr. 46, 94 and 115, as Part-I of Form 17C were not available on the date of counting, though Part-I and Part-II of Form 17C are required to be compared and the satisfaction by the Returning Officer in that regard is required to be recorded before the counting starts. The learned Sr. counsel further submits that it is also evident from the deposition of PW-7 that though the Presiding Officer's diaries, in the absence of Part-I of Form 17C, were used for the aforesaid polling stations for the purpose of counting, the Returning Officer does not remember as to whether he gave any consent to adopt such procedure. 11. The learned Sr. counsel further submits that it is also evident from the deposition of PW-7 that though the Presiding Officer's diaries, in the absence of Part-I of Form 17C, were used for the aforesaid polling stations for the purpose of counting, the Returning Officer does not remember as to whether he gave any consent to adopt such procedure. 11. The learned Sr. counsel referring to Rules 49T and 49U of 1961 Rules as well as instruction 41.3, 44 and 45 of Chapter-XIII and 16.5 of Chapter-XIV of the Instruction to the Returning Officer (Ext.-10), has submitted that though it requires sealing of the EVM, Form 17C and the election papers in envelops, at the close of the poll and keeping of account of votes recorded in Form 17C, by the Presiding Officer, in a separate sealed cover on the top of the control unit pertaining to the polling station while in strong room, which again is required to be securely sealed under instruction No. 47.5 until the morning of the day fixed for counting, as well as requires supply of sealed cover containing Form 17C of the polling stations to the counting table along with the control units used in the polling stations and under instruction 20.1 the serial number of the paper seal in the EVM is required to be compared with the serial number of the paper seal in item 9 of Part-I of Form 17C and thereafter in the counting process it is required to be compared as to whether total number of votes in the EVM as recorded in Part-II of Form 17C tally with the total number of votes against item No. 5 of Form 17C and the same is required to be noted down in the said form, to ensure compliance of Rule 55C(3) of 1961 Rules, before counting of votes recorded in the EVM, so as to satisfy the Returning Officer that none of the EVM has been tampered with, it is evident from the deposition of PW-7, the Returning Officer, that the Part-I of Form 17C was not available at the time of counting and hence there was no occasion on the part of the Returning Officer to verify as to whether the serial number of the paper seal mentioned in Part-I of Form 17C as well as total number of votes polled as mentioned therein tallies with the figures mentioned in Part-II of Form 17C, thereby to satisfy himself that none of the EVM has been tampered with. The learned Sr. counsel submits that in Part-II of Form 17C, in respect of polling station Nos. 46, 94 and 115, the Returning Officer, in fact, has not recorded his satisfaction that the EVMs have not been tampered with, which itself violate the mandatory requirement of Rule 55C(3) of 1961 Rules. 12. The learned Sr. counsel referring to the Part-I of Form 17C, which are proved by the respondent No. 1/returned candidate and marked as Exts.-G, H and J, has submitted that those in any case cannot be taken as genuine documents, as the Presiding Officers of the said polling stations, namely, DWs-2, 3 and 4, during their cross-examination, have admitted that there are no round seals of the Presiding Officers in these documents and the envelops in which those documents were produced, are unsealed and do not bear any evidence of ever been sealed. It has also been submitted that no reliance can be placed on those documents, being Exts.-G, H and J, the custody of these documents from the date of counting till their production in Court having not been proved, more so, when these documents were not sent to this Court by the concerned Election Officer of the constituency when the records were called for and produced before this Court. The learned Sr. counsel submits non-compliance of the same amounts to violation of the provisions of 1961 Rules and the statutory instruction to the Returning Officer, which, in view of the difference of votes polled i.e. 233 by the election petitioner and the returned candidate and also the number of electors who cast their votes in polling station Nos. 46, 94 and 115 being 1901, has materially effected the result of the election in so far as the returned candidate is concerned and hence the result of the election declaring the respondent No. 1 needs to be set aside by directing re-poll in respect of polling station Nos. 46, 94 and 115. Mr. Dutta, referring to the video recording of the counting done by the Returning Officer, has submitted that though the election petitioner has led evidence on such video recording, DVDs of which are marked as Exts.-11 and 12, the election petitioner having not establishing the proper custody, is not relying on the said video recording. 13. The learned Sr. Mr. Dutta, referring to the video recording of the counting done by the Returning Officer, has submitted that though the election petitioner has led evidence on such video recording, DVDs of which are marked as Exts.-11 and 12, the election petitioner having not establishing the proper custody, is not relying on the said video recording. 13. The learned Sr. counsel referring to the decisions in Nazir Ahmed vs. Emperor reported in AIR 1936 PC 253 , in State of Uttar Pradesh vs. Singhara Sinh & Ors. reported in AIR 1964 SC 358 and in Ramchandra Keshav Adke & Ors. vs. Govind Joti Chavare & Ors. reported in (1975) 1 SCC 559 , has also submitted that it is being a settled position of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that manner and not at all and that other methods of performance are necessarily forbidden, the counting of votes in respect of polling station Nos. 46, 94 and 115 is illegal, the same having not been done in the manner laid down in 1961 Rules as well as the statutory instruction issued by the Election Commission to the Returning Officer. The learned Sr. counsel has also placed reliance on the decision of the Apex Court in Uttamrao Shivdas Jankar vs. Ranjitsinh Vijaysinh Mohite Patil reported in (2009) 13 SCC 131 in support of his contention that the instructions contained in the handbook for the Returning Officer issued by the Election Commission are binding on the Returning Officers and they are obliged to follow in latter and spirit. 14. Mr. Bhattacharjee, learned Sr. counsel appearing for the respondent No. 1/returned candidate, referring to the pleadings in the election petition has submitted that since no material facts as to how and in what manner there was incorrect totaling of votes at the time of counting and non-compliance of the provisions of 1951 Act, 1961 Rules and the instruction to the Returning Officer, the election petition deserves to be dismissed on that count alone, in view of the provisions contained in Section 83(1)(a) of 1951 Act, which provides that an election petition shall contain a concise statement of material facts, on which the petitioner relies. The learned Sr. The learned Sr. counsel submits that the contents of the election petition are vague and there is also no pleadings how and in what manner the alleged irregularities or non-compliance of the provisions of the law has materially effected the result of the election in so far as the returned candidate is concerned. It has been submitted that the election petition has been filed only because of the low margin of votes by which the election petitioner has lost the election. 15. The learned Sr. counsel further submits that though the election petitioner has pleaded that only one out of 19 postal ballot papers though was rejected, it was shown in the result that all the 19 postal ballots were rejected, she, however, could not prove the same by adducing any evidence and it is also apparent from the evidence of the witnesses examined that all the 19 postal ballots were rejected, which has been reflected in Form 20. The learned Sr. counsel further submits that in any case, the difference of votes polled by the petitioner and the respondent No. 1 being 233, rejection of 19 postal ballots would not materially affect the result of the election. 16. Mr. Bhattacharjee also submits that the election petitioner in the election petition has not pleaded what were the discrepancies in Part-I and Part-II of Form 17C as well as non-availability of Part-I of Form 17C at the time of counting of votes and only after inspection of the records, as called for by this Court, the election petitioner has taken the plea of non-availability of Part-I of Form 17C at the time of counting, thereby violating the provisions of 1961 Rules as well as the instruction to the Returning Officer. The learned Sr. counsel submits that such a plea having not been taken in the election petition, no amount of evidence led in that respect can be looked into for the purpose of deciding the election petition. It has also been submitted that the election petitioner has not pleaded in the election petition as to in which of the polling stations there were discrepancies in Part-I and Part-II of Form 17C. According to the learned Sr. It has also been submitted that the election petitioner has not pleaded in the election petition as to in which of the polling stations there were discrepancies in Part-I and Part-II of Form 17C. According to the learned Sr. counsel the plea of the election petitioner relating to the failure of the Returning Officer to do the random verification and non-availability of such record is equally vague and it has also not been pleaded as to how and in what manner such irregularity has materially affected the result of the election. 17. The learned Sr. counsel submits that even assuming but not admitting that the evidence relating to the allegation of non-existence of Part-I of Form 17C can be looked into, there being no sufficient evidence to take away the sanctity of votes polled in three polling stations in question, the election petitioner is not entitled to an order for recount based on such evidence, more so, when there is no evidence on record to show that at the time of counting it was the Presiding Officers' diaries, which were used and not the Part-I of Form 17C. According to the learned Sr. counsel, the Returning Officer (PW-7) was even not put a question by the petitioner that instead of using of Part-I of Form 17C the Presiding Officers' diaries were used in the counting. The learned Sr. counsel further submits that the Presiding Officers (DWs-2, 3 and 4), who prepared the Part-I of Form 17C have proved the same, which are marked as Exts.-G, H and J, existence of which has not been disputed. 18. It has further been submitted that the election petitioner, in any case, cannot question the counting process on the basis of vague allegation of discrepancy, more so, when the number of votes recorded in Part-I of Form 17C (Exts.-G, H and J) tallies in the Presiding Officers' diaries, which in turn tallies with the Part-II of Form 17C in respect of polling station Nos. 46, 94 and 115, more so, when it is not the case of the election petitioner that the number of votes she had shown to have polled in respect of the aforesaid polling stations, as reflected in the final result sheet in Form 20, are not correct and she had secured more votes in those polling stations. 19. The learned Sr. 19. The learned Sr. counsel referring to the deposition of PW-7, who has proved the Ext.-18, has also submitted that the counting agent of the petitioner, namely, Asad Ali Moral has signed the certificate endorsing satisfaction about the manner and result of the counting. Similarly the counting agents of the petitioner have also put their signatures after the 10th and 11th round of counting recording their satisfaction and hence it cannot be said that they have disputed such counting at the relevant point of time. It has also been submitted that it is evident from the deposition of PW-7 that there was absolutely no disturbance during counting and there was no occasion to call the police or the CRPF personnel inside the counting hall and the counting agents of the petitioner were present up to the end of the 11th round, who put their signatures in the satisfaction certificates. Mr. Bhattacharjee, referring to the videography of the counting process further submits that the same cannot be viewed and taken into consideration as the proper custody of the same from the date of the counting till the date of production before the Court has not been proved. The learned Sr. counsel, therefore, submits that the election petitioner could not make out any case either for recount or for re-poll. 20. Referring to the deposition of PW-7, the Returning Officer, who has been examined by the election petitioner as her witness, it has also been submitted by the learned Sr. counsel that the Returning Officer himself has stated that the application for recount was filed after the declaration of the result and issuance of Form 20 and not at 4.30 P.M. on the date of counting. PW-7, therefore, has not supported the case of the election petitioner about filing of the said application. It is also submitted that it is evident from the deposition of PW-7 that the counting agents of the election petitioner have signed the satisfaction certificate that the counting was done smoothly and in accordance with the law and there was absolutely no discrepancy. Referring to the deposition of PW-1, the election petitioner, it has also been submitted that during cross-examination this witness has admitted that she does not know the nature of discrepancy in counting and has not produced any document to demonstrate that there was no random verification and preparation of round wise statement as alleged. 21. Referring to the deposition of PW-1, the election petitioner, it has also been submitted that during cross-examination this witness has admitted that she does not know the nature of discrepancy in counting and has not produced any document to demonstrate that there was no random verification and preparation of round wise statement as alleged. 21. The learned Sr. counsel in support of his contention has placed reliance on the decisions of the Apex Court in Jagan Nath vs. Jaswant Singh & Ors. reported in AIR 1954 SC 210 ; in Ram Sewak Yadav vs. Hussain Kamil Kidwai reported in AIR 1964 SC 1249 ; in Chanda Singh vs. Choudhary Shiv Ram Verma reported in (1975) 4 SCC 393 ; in Suresh Prasad Yadav vs. Jai Prakash Mishra reported in (1975) 4 SCC 822 ; in Bhabhi vs. Sheo Govind reported in (1976) 1 SCC 687 ; in R. Narayanan vs. S. Semmalai & Ors. reported in (1980) 2 SCC 537 ; in P.K.K. Shamsudeen vs. K.A.M. Mappillai Mohindeen & Ors. reported in (1989) 1 SCC 526 ; in M.R. Gopalakrishnan vs. Thachady Prabhakaran reported in 1995 Supp (2) SCC 101; in Ravinder Singh vs. Janmeja Singh reported in (2000) 8 SCC 191 ; in vs. Achuthanandan vs. P.J. Francis & Anr. reported in (2001) 3 SCC 81 ; in Hari Shanker Jain vs. Sonia Gandhi reported in (2001) 8 SCC 233 ; in Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar reported in (2009) 9 SCC 310 ; in Ram Sukh vs. Dinesh Aggarwar reported in (2009) 10 SCC 541 ; in Laxmi Kant Bajpai vs. Haji Yaqoob & Ors. reported in (2010) 4 SCC 81; in Markio Tado vs. Takam Sorang reported in (2012) 3 SCC 236 ; in Mangani Lal Mandal vs. Bishnu Deo Bhandari reported in (2012) 3 SCC 314 and in People's Union For Civil Liberties & Anr. vs. Union of India & Anr. reported in (2013) 10 SCC 1 . 22. In reply to the submissions advanced by the learned Sr. counsel appearing for the respondent No. 1/returned candidate, Mr. Dutta, learned Sr. vs. Union of India & Anr. reported in (2013) 10 SCC 1 . 22. In reply to the submissions advanced by the learned Sr. counsel appearing for the respondent No. 1/returned candidate, Mr. Dutta, learned Sr. counsel appearing for the election petitioner reiterating the argument already advanced, has submitted that since the election petitioner in the election petition has specifically pleaded that there were serious discrepancies in the counting process, which was conducted in violation of the provisions of the 1951 Act, 1961 Rules and the mandatory statutory direction of the Election Commission relating to such counting, hence it cannot be said that the material particulars are not pleaded in the election petition. It has also been submitted that this Court having regard to the petition filed under Order 6 Rule 16 CPC read with Order 7 Rule 11 CPC, has struck down certain pleadings by maintaining the pleadings relating to incorrect totaling at the time of counting of votes and non-compliance of the provisions of 1951 Act and 1961 Rules, having found that material facts supporting such pleadings have been pleaded and accordingly the issues were framed, as such pleadings disclose the cause of action. In any case, according to the learned Sr. counsel the pleading of material facts in an election petition being necessary, so that the party, who requires to respond and defend, is not caught by surprise and in the instant case as the issues were framed, respondent No. 1/returned candidate having knew what are the allegations of the election petitioner and he having cross-examined the election petitioner's witnesses, who have deposed on such allegation and also having led his own evidence for the purpose of demonstrating that the allegations of the election petitioner are not true, cannot, therefore, asked for dismissal of the election petition on the ground of material facts being not pleaded, at this stage, as he has not been caught by surprise. The learned Sr. counsel submits that the decisions on which the respondent No. 1 has placed reliance on the contention that the election petition is to be dismissed for want of material facts, cannot be applied in the case in hand, as either those cases pertain to summary dismissal of the election petition without leading evidence or there were no pleading, no issue and no evidence led, unlike the case in hand. 23. The learned Sr. 23. The learned Sr. counsel, in support of his contention, has placed reliance on the decisions of the Apex Court in Nagubai Ammal & Ors. vs. B. Shama Rao & Ors. reported in AIR 1956 SC 593 , in Bhagwati Prasad vs. Chandramaul reported in AIR 1966 SC 735 , in Ram Sarup Gupta vs. Bishun Narain Inter College & Ors. reported in (1987) 2 SCC 555 , of this Court in Monoranjan Paul & Ors. vs. Narendra Kumar Paul & Ors. reported in AIR 1994 Gauhati 64 and of the Calcutta High Court in Saraswati Debi & Ors. vs. Satya Narayan Gupta reported in AIR 1977 Calcutta 99. 24. Mr. Dutta further submits that the election petition filed by the petitioner cannot be dismissed on the ground that the application for recount, even assuming, was not filed before declaration of the result by the Returning Officer, as contended by the respondent No. 1/returned candidate, as the 1951 Act does not create any bar for filing an election petition in the absence of any prayer for recount before the Returning Officer at the appropriate time. It has also been submitted that under the scheme of the 1951 Act any elector being authorized to file an election petition and whereas in the counting process the recount can be asked for only by the candidate or his election agent or the counting agent, the filing of an application for recount before the Returning Officer at the appropriate time is not a condition precedent for filing an election petition under the provisions of 1951 Act. The learned Sr. counsel in support of his contention has placed reliance on a judgment of Kerala High Court in T.P. Seetharaman vs. K. Sekharan & Ors. reported in AIR 1968 Kerala 284. 25. It has also been submitted by Mr. Dutta that the submission of the learned Sr. counsel for the respondent No. 1/returned candidate that the recount having the effect of impinging upon the secrecy of the voting process, which is sacrosanct, the result of the election should not be lightly interfered with by directing recount, cannot be accepted in view of introduction of EVM and as recount of votes recorded in such EVM does not impinge upon the secrecy of the voting process. The learned Sr. The learned Sr. counsel, therefore, submits that the decisions on which the respondent No. 1 has placed reliance in that regard being not related to the use of the EVM, cannot be applied in the instant case. The learned Sr. counsel further submits that free, fair and purity of election being very important and in the matter of selection of representative of people this principles having acquired greater significance, this Court having regard to the proved facts may set aside the result of the election and direct re-poll in polling station Nos. 46, 94 and 115 and to declare the result thereafter. The learned Sr. counsel in this regard has placed reliance on the decision of the Apex Court in Jagan Nath vs. Jaswant Singh & Ors. reported in AIR 1954 SC 210 and in A. Neelalohithadasan Nadar vs. George Mascrene & Ors. reported in 1994 Supp (2) SCC 619. RELEVANT PROVISIONS OF LAW 26. Clause (a) of sub-section (1) of Section 83 of 1951 Act provides that an election petition shall contain a concise statement of material facts on which the petitioner relies. Sub-section (1) of Section 87 of the said Act also provides that subject to the provisions of the Act and of any Rule made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of a suit. Order 6 as well as Order 7 of the Code of Civil Procedure, are, therefore, made applicable to the trial of an election petition. 27. Sub-rule (1) of Rule 2 of Order 6 provides that every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Rule 16of Order 6 empowers the Court to strike out or amend any matter in any pleading at any stage of the proceeding which may be unnecessary, scandalous, frivolous and vexatious; or which may tend to prejudice, embarrass or delay the fair trial of the suit; or which is otherwise an abuse of the process of the Court. Rule 11 of Order 7 stipulates when the plaint shall-be rejected. Rule 11 of Order 7 stipulates when the plaint shall-be rejected. Clause (a) of Rule 11 of Order 7 provides that a plaint shall be rejected where it does not disclose a cause of action. Pleadings in the election petition, therefore, can be struck out for not making the statements of material facts and an election petition may be dismissed if it does not disclose any cause of action. 28. Rule 49T(1) of 1961 Rules provides that the Presiding Officer shall, as soon as practicable after the closing of the poll, close the control unit to ensure that no further votes can be recorded and shall detach the balloting unit from the control unit and from the printer, where printer is also used, so however, that the paper slips contained in the drop box of the printer shall remain intact. Sub-rule (2) provides that the control unit, the balloting unit and the printer, where it is used, shall thereafter be sealed, and secured separately in such manner as the Election Commission may direct and the seal used for securing them shall be so affixed then it will not be possible to open the unit without breaking the seal. Sub-rule (3) authorizes the polling agent present at the polling station to affix their seals, if so desire. 29. Rule 49U(1) of 1961 Rules provides that the Presiding Officer shall then make into separate packets- (a) the marked copy of electoral roll; (b) the register of voters in Form 17A; (c) the cover containing the tendered ballot papers and the list in Form 17B; (d) the list of challenged votes; and (e) any other papers directed by the Election Commission to be kept in a sealed cover. 30. Rule 66 A of 1961 Rules provides the manner of counting of votes where EVMs have been used. Rule 55C thereof provides for the scrutiny and inspection of voting machines. Sub-rule (3) of Rule 55C requires the Retuning Officer to satisfy himself that none of the voting machines has in fact been tampered with. 31. Chapter-XIII of the Handbook for Returning Officers, which contains the instructions issued by the Election Commission to the Returning Officer for conduct of election, including counting, provides the instruction relating to the poll. Clause 41 provides for preparation of account of votes recorded. 31. Chapter-XIII of the Handbook for Returning Officers, which contains the instructions issued by the Election Commission to the Returning Officer for conduct of election, including counting, provides the instruction relating to the poll. Clause 41 provides for preparation of account of votes recorded. Clause 41.3 provides that the account of votes recorded in Form 17C should be kept by the Presiding Officer in a separate sealed cover with the words 'Account of Votes Recorded' super-subscribe thereon. It also requires giving another copy of the same at the reception centre in another envelope not sealed. Clause 44 provides for sealing of the voting machine after the close of poll. Clause 45 provides for sealing of election papers. Clause 45.1 provides that after the close of poll, all election papers relating to the poll should be sealed by the Presiding Officer in accordance with the provisions of Rule 49U of 1961 Rules. Clause 45.2 provides that each packet containing election papers shall be sealed with the seal of the Presiding Officer and the candidates or their agents present at the polling station shall also be allowed to affix their seals on such packets, if they so desire. Clause 47 provides for safe custody of voting machines after poll. Clause 47.3 amongst others, provides that one copy of the account of votes recorded and the paper seal account of each polling station should be kept on top of the control unit pertaining to the polling station. It also provides that the duplicate copy of the account of votes recorded and the paper seal account should be kept under the safe custody of the Returning Officer along with the Presiding Officer's Diary. 32. Clause 16 of Chapter-XIV provides the manner of counting of votes recorded in voting machines, apart from scrutiny and inspection of control units. Clause 16.5 provides that along with the control unit used at a polling station, sealed cover containing the relevant account of votes recorded in Form 17C pertaining to that polling station shall also be supplied to the counting table. Clause 20 of the said Chapter provides for comparison of the serial number of the paper seal. Clause 20.1 amongst others, provides for comparison of the serial number on the paper seal with the serial number as given in the paper seal account prepared by the Presiding Officer in item 9 of Part-I of Form 17C. Clause 20 of the said Chapter provides for comparison of the serial number of the paper seal. Clause 20.1 amongst others, provides for comparison of the serial number on the paper seal with the serial number as given in the paper seal account prepared by the Presiding Officer in item 9 of Part-I of Form 17C. Clause 20.2 provides how the Returning Officer can ascertain whether the voting machine has been tampered with. The Apex Court in Uttamrao Shivdas Jankar (supra) has opined that while exercising the quasi-judicial power by the Returning Officer, in terms of the provisions of the 1951 Act, it is incumbent upon him to follow the instructions contained in the Handbook for Returning Officer issued by the Election Commission. 33. There is no dispute to the proposition of law enanciated by the Privy Council as well as by the Apex Court that where a power is conferred upon an authority to do a certain thing in a certain manner, by a statute, the thing must be done in that manner and not in any other manner. Reference in this regard may be made to the decision of the Privy Council in Nazim Ahmed (supra) and of the Apex Court in Singhara Sinh (supra) and in Ramchandra Keshav Adke (supra). ISSUE WISE DISCUSSION AND DECISION 34. I have perused the pleadings and the evidence, both oral and documentary, adduced by the parties. I have also considered the submissions advanced by the learned Sr. counsel appearing for the election petitioner and the respondent No. 1/returned candidate, apart from the relevant provisions of law, noticed above. 35. The election petitioner and the respondent No. 1/returned candidate, in support of their respective cases, have examined 8 (eight) and 4 (four) witnesses, respectively. The witnesses were duly cross-examined by the respective parties. During the course of examination of the witnesses, the election petitioner has proved the documents, which are marked as Exts.-1 to 21 and the respondent No. 1/returned candidate has proved the documents, which are marked as Exts.-A to K. 36. I shall now proceed to decide the following issues, which are taken up together for consideration, those being interconnected. During the course of examination of the witnesses, the election petitioner has proved the documents, which are marked as Exts.-1 to 21 and the respondent No. 1/returned candidate has proved the documents, which are marked as Exts.-A to K. 36. I shall now proceed to decide the following issues, which are taken up together for consideration, those being interconnected. Issue No. 1: Whether there is violation and noncompliance of the provisions of Representation of People Act, 1951 and the Conduct of Election Rules, 1961 as well as the instruction of the Election Commission of India to the Returning Officers as regards the procedure laid down for counting of votes, if so, whether it has materially affected the result of the election in so far as the returned candidate/respondent No. 1 is concerned? Issue No. 2: Whether there is violation of provisions relating to counting, recounting and suspension in counting of votes in EVM as provided by Rules 60, 63, 66A read with the Rules 55C, 56C and 57C of the Conduct of Election Rules, 1961, if so, whether the same has materially affected the result of the election in so far as the returned candidate/respondent No. 1 is concerned? Issue No. 5: Whether the contents of the election petition are vague and devoid of any material facts necessary to make out a case for grant of the relief sought for in the election petition? 37. As noticed above, the election petitioner in paragraph 5 of the election petition has pleaded that the result of the election of the returned candidate has been vitiated by discrepancies; incorrect totaling at the time of counting of votes; malfunctioning of control unit of EVM of polling station No. 6; non-closure of control unit of polling station No. 43 after completion of poll and improper rejection of 18 postal ballots. The relevant pleading relating to the allegation of malfunctioning of control unit of EVM of polling station No. 6 and non-closure of control unit of polling station No. 43 after completion, have been struck down vide order dated 07.05.2012 passed in Misc. Case No. 3012/2011, for not pleading the material facts and for non-disclosure of cause of action. The allegations, which remain in the election petition, therefore, are discrepancies in counting and incorrect totaling at the time of counting and improper rejection of 18 postal ballots. 38. Case No. 3012/2011, for not pleading the material facts and for non-disclosure of cause of action. The allegations, which remain in the election petition, therefore, are discrepancies in counting and incorrect totaling at the time of counting and improper rejection of 18 postal ballots. 38. In paragraph 6 of the election petition, it has been pleaded that at the time of counting rejected postal ballots were not separately bundled for sealing and neither the election petitioner nor her election agent or any counting agents of the election petitioner was asked to put their seal in the packet of the rejected postal ballots and at the end of the counting though one postal ballot was declared to have been rejected by the Returning Officer, while preparing Form 20, prior to declaration of result, the petitioner was told by the Returning Officer that all 19 postal ballots were rejected. It has also been pleaded that in Form No. 20 those 19 rejected postal ballots were shown as tendered votes. 39. The election petitioner (PW-1),in her evidence has stated that initially though only one postal ballot was declared to have been rejected by the Returning Officer, however, at the end of the counting all 19 postal ballots were declared to have been rejected by the Returning Officer. PW-2, the election agent of PW-1, has stated on the same line as has been stated by the PW-1. PWs-3, 4 and 5, the counting agents of the election petitioner, who according to the election petitioner herself were present at the time of counting, however, did not say anything relating to the discrepancy in the matter of counting and rejection of the postal ballots. These witnesses, therefore, have not supported the case of the election petitioner relating to any discrepancy in counting of postal ballots. The Returning Officer, who has been examined by the election petitioner as PW-7, also did not support the case of the election petitioner. The election petitioner, in fact, has not put a single question to PW-7 relating to the alleged discrepancy in counting the postal ballots. In the final result sheet in Form 20, which has been proved and marked as Ext.-19, all the 19 postal ballots are shown as rejected votes and not as tendered votes as pleaded by the election petitioner in the election petition and as deposed by the PWs-1 and 2 in that regard. In the final result sheet in Form 20, which has been proved and marked as Ext.-19, all the 19 postal ballots are shown as rejected votes and not as tendered votes as pleaded by the election petitioner in the election petition and as deposed by the PWs-1 and 2 in that regard. The election petitioner, therefore, has failed to prove the irregularity in counting of postal ballots. In any case, the difference of votes between the election petitioner and the respondent No. 1/returned candidate being 233, irregularities in counting of 19 postal ballots, even if exist, would not materially affect the result of the election in so far as it relates to the returned candidate. 40. The election petitioner in paragraph 10 of the election petition has pleaded that though the provisions of 1951 Act, 1961 Rules and the instruction of the Election Commission to the Returning Officer as regards the procedure laid down for counting of votes require random checking of EVMs, no such verification was done and no record is available with the Returning Officer or with the Election Commission as regards the round wise statements mandatorily required to be prepared. The election petitioner (PW-1) has stated in Verbatim what has been pleaded in the election petition, so also by the PW-2, who is the election agent of the election petitioner. PWs-3 to 6, who are admittedly the counting agents of the election petitioner and were present during the entire period of counting, however, did not support the election petitioner in that regard, as they have in their depositions, even not made a whisper in that regard. On the other hand, the Returning Officer (PW-7), who has been examined by the election petitioner as her witness, in his deposition has stated that the counting was conducted in accordance with the requirement of 1951 Act, 1961 Rules and the instruction issued by the Election Commission in that regard. The election petitioner not even put a question to the Returning Officer (PW-7) regarding not doing random verification and preparation of round wise statement mandatorily required to be prepared. The election petitioner not even put a question to the Returning Officer (PW-7) regarding not doing random verification and preparation of round wise statement mandatorily required to be prepared. The election petitioner though in her pleadings also claimed that result of 10th and 11th round of counting was not reflected in the blackboard and she has also deposed in that regard, from the evidence of PW-7, the Returning Officer, it is evident that the result of 10th and 11th round was displayed in the blackboard and the counting agents of the election petitioner put their signatures in the satisfaction certificate certifying proper counting, which has been proved by the Returning Officer and marked as Exts.-18(1) to 18(11). There is no reason as to why the Returning Officer should not be believed. The videography of the counting, DVDs of which are marked as Exts.-11 and 12, have not been viewed and taken into consideration in view of the submissions made by both the parties against its admissibility. 41. The Apex Court in Bhabhi (supra) has held that the Court would be justified in ordering a recount of the ballot papers, only where the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and the Court trying the petition is prima facie satisfy that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. Similar view has also been taken by the Apex Court in P.K.K. Shamsudeen (supra), in Chanda Singh (supra), in Suresh Prasad Yadav (supra), in R. Narayanan (supra) and in M.R. Gopalakrishnan (supra). 42. In V.S. Achuthanandan (supra) the Apex Court has opined that to get an order for recount the illegalities or irregularities in counting must be pleaded and has to be substantiated by adducing evidence, as secrecy of the ballot is sacrosanct and shall not be permitted to be violated lightly and merely for asking or on vague and indefinite allegations or averments of general nature. In Markio Tado (supra), it has been opined by the Apex Court that the election petitioner cannot be allowed to indulge in a roving enquiry with a view to fishout materials for deciding the election to be void. 43. The election petitioner also wants to project another discrepancy in counting, namely, the non-availability of Part-I of Form 17C, in respect of polling station Nos. 46, 94 and 115, at the time of counting, though mandatory requires under the provisions of 1961 Rules as well as the instruction by the Election Commission to the Returning Officer. The election petitioner in the election petition has not pleaded such discrepancy and no material facts in that regard has also been pleaded. The only pleading of the election petitioner relating to Form 17C is in paragraph 9 of the election petition, relevant portion of which is reproduced below:- ".........In the instant case there were serious discrepancies in part I and in part II of the polling stations as regards the total votes polled in the polling station in questions. Because of such discrepancies, there were incorrect totaling in the round wise statement calculated on the basis of such wrong figures in Form 17C and projected in the black board. The Counting Agents of the election petitioner refused to put their signature in Form 17C after the 9th round in view of persistent failure of the R.O./A.R.O. to correct such material discrepancies in Form 17C and the incorrect totaling therein. The situation was such that the election officials themselves did not put up the result of the 10th and 11th round in the black board. It may be stated that there were in total eleven rounds of counting............" 44. The election petitioner (PW-1), the election agent (PW-2) of the election petitioner and the counting agents (PWs-3 to 6) of the election petitioner, in their depositions have stated that during counting process, there were serious discrepancies in Part-I and Part-II of Form 17C of polling stations as regard the total votes polled in the polling station in question and because of such discrepancies, there were incorrect totaling in the round wise statement calculated on the basis of such wrong figures in Form 17C and projected in the blackboard. The election petitioner neither in the election petition nor in the evidence adduced by her and on her behalf claimed non-availability of Part-I of Form 17C in respect of any polling station including polling station Nos. 46, 94 and 115, at the time of counting. On the other hand, from the aforesaid pleadings, as noticed above and also the deposition of the witnesses of the election petitioner, it appears that they have admitted availability of Part-I of Form 17C at the time of counting, as they have alleged that there were serious discrepancies in Part-I and Part-II of Form 17C as regards the total votes polled in regards the polling stations in question. The election petitioner has also not pleaded at all that the said Part-I of Form 17C in respect of polling station Nos. 46, 94 and 115 were not available and what was pleaded in the preceding paragraph was discrepancies in respect of polling station No. 43, in relation to the EVM, which pleading has already been struck off, as discussed above. 46. The Returning Officer (PW-7) has also not supported the election petitioner, as he has deposed that the counting was done in accordance with the requirement of 1961 Rules and the instruction issued by the Election Commission to the Returning Officer in that regard. The Returning Officer has also not stated that Part-I of Form 17C was not available at the time of counting. What he has stated in his in-chief examination is that Exts.-13, 14 and 15 bunch of Form 17C do not contain the Part-I of Form 17C in respect of polling station Nos. 46, 94 and 115, but contains the Presiding Officers' diaries in its place. He has further deposed that he does not remember whether before attaching the Presiding Officers' diaries his consent was obtained. Such statement do not suggest non-availability of Part-I of Form 17C in respect of any of the polling stations, at the time of counting. Merely because the Presiding Officers' diaries in respect of the aforesaid polling stations are attached in Exts. 13, 14 and 15, it cannot, in the absence of any evidence in that regard, be held that Part-I of Form 17C in respect of those polling stations were not available at the time of counting. Merely because the Presiding Officers' diaries in respect of the aforesaid polling stations are attached in Exts. 13, 14 and 15, it cannot, in the absence of any evidence in that regard, be held that Part-I of Form 17C in respect of those polling stations were not available at the time of counting. The Returning Officer has also in his evidence stated that the Part-I of Form 17C in respect of those polling stations are available in the election office. Those Part-I of Form 17C have been proved by the respondent No. 1/returned candidate, which are marked as Exts.-G, H and J. Simply because the envelopes containing Exts.-G, H and J do not bear the mark of any sealing, which are required to be sealed after the polling is over, it cannot be said that those were not available at the time of counting. Such mark of seal in the envelopes produced before this Court may not be present, as after use of those documents at the time of counting, those may be put in other envelopes. In any case, the election petitioner could not prove the absence of Part-I of Form 17C in respect of the aforesaid polling stations at the time of counting, though the burden heavily lies on the election petitioner to prove the same for the purpose of setting aside the election of the returned candidate. 46. It also appears from the application dated 13.05.2011 (Ext.-A) filed by the election agent of the election petitioner before the Returning Officer praying for recount that none of the grounds taken in the present election petition has been taken in the said application seeking recount, except saying that the applicant, namely, the election agent of the election petitioner has extreme doubt in the election result. The said application dated 13.05.2011 is reproduced below, in its entirety:- "To The Returning Officer, 85 Rupahihat LAC, Nagaon. Dt. 13.05.11 Sub: Prayer for recounting of election result of 85 Rupahihat LAC. Sir, I have the honour to state that I am an election agent of Salma Jesmin, the Congress candidate of 85 Rupahihat LAC. I am having extreme doubt in election result that was conducted today. I am sure that my candidate shall win from the LAC. I therefore request your honour to be kind enough and grant my application for recounting. I shall remain ever grateful to you for your kind deeds. I am having extreme doubt in election result that was conducted today. I am sure that my candidate shall win from the LAC. I therefore request your honour to be kind enough and grant my application for recounting. I shall remain ever grateful to you for your kind deeds. Thanking you. Yours faithfully, Nurul Islam Election Agent for Salma Jesmin 85 Rupahihat LAC." 47. Had the discrepancies as projected by the election petitioner in the election petition been occurred at the time of counting, those would definitely have been mentioned in the application filed on 13.05.2011 seeking recount. The contents of the said application, the same being a contemporaneous document assumes importance. The election petitioner, therefore, could not demonstrate the violation of the provisions of 1951 Act, 1961 Rules and the instruction of the Election Commissioner to the Returning Officer with regard to the procedure for counting. 48. The Apex Court in Nagubai Ammal (supra) has opined that the absence of a specific pleading on a question which if resulted in no prejudice to the defendants, they having went to trial with full knowledge that such question was in issue and had ample opportunity to adduce their evidence thereon, which they have fully availed of, is a mere irregularity. It has also been held that true scope of the rule that no amount of evidence can be looked into upon a plea which was never put forward, is that evidence let in on that issue on which the parties eventually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they have no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto. The Apex Court in Bhagwati Prasad (supra) as well as in Ram Sarup Gupta (supra) has reiterated the same, so also by a Division Bench of the Calcutta High Court in Saraswati Debi (supra). The Apex Court in Bhagwati Prasad (supra) as well as in Ram Sarup Gupta (supra) has reiterated the same, so also by a Division Bench of the Calcutta High Court in Saraswati Debi (supra). The Apex Court in Laxmi Kant Bajpai (supra) has opined that it is a settled legal position that an election petition must clearly and unambiguously set out all the material facts which the election petitioner is to rely upon during the trial, and it must reveal a clear and complete picture of the circumstances and should also disclose a definite cause of action, in the absence of which an election petition can be summarily dismissed. In Hari Shanker Jain (supra) the Apex Court has opined that it is the duty of the Court to examine the election petition irrespective of any written statement or denial and reject the same, if it does not disclose a cause of action, for which the Court has to look at the election petition alone and nothing else. It has further been opined that no amount of evidence can cure basic defect in the pleadings. The Apex Court in Ravinder Singh (supra), in Markio Tado (supra) and in Anil Vasudev Salgaonkar (supra) has held that no evidence can be led on a plea which is not raised in the pleading and no amount of evidence can cure the defect in the pleadings. A Single Bench of this Court in Monoranjan Paul (supra) has held that if the parties were fully aware about the dispute, non-framing of an issue on such dispute is not fatal unless prejudice is shown to be caused. 49. The election petitioner in the election petition has also not pleaded as to how and in what manner the result of the returned candidate has been materially affected. None of the witnesses examined by the election petitioner, in their depositions have stated that because of the discrepancies in counting the result of the election in so far as the returned candidate is concerned, has been materially affected. None of the witnesses examined by the election petitioner, in their depositions have stated that because of the discrepancies in counting the result of the election in so far as the returned candidate is concerned, has been materially affected. The result of the election cannot be set aside on the ground of non-compliance of the provisions of the Constitution or the Act or 1951 Act or any Rules or orders made in the Act, unless it is proved that the result of the election, in so far as it concerns the returned candidate, has been materially affected, as stipulated in clause (d) of sub-section (1) of Section 100 of 1951 Act. [Reference in this regard may be made to a judgment passed by the Apex Court in Mangani Lal Mandal (supra).] 50. The Apex Court in Jagan Nath (supra) has opined that the general rule is that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in enquiry but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. It has also been opined that though it is sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of law, one of the essentials of the law is also to safeguard the purity of the election process and to see that people do not get elected by fragrant breaches of the law or by corrupt practice. In Ram Sukh (supra), the Apex Court reiterating the said principle of law has opined that success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. In Ram Sukh (supra), the Apex Court reiterating the said principle of law has opined that success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. It has further been opined that nevertheless, it is also to be borne in mind that one of the essentials of the election law is to safeguard the purity of the election process and, therefore, the courts must zealously ensure that people of do not get elected by flagrant breaches of that law or by indulging in corrupt practices, as enumerated in the Act The Apex Court in A. Neelalohithadasan Nadar (supra) has reiterated that purity of election principle must have its way and one must yield to the principle of purity of election in larger public interest, for the sake of purity of election for ensuring free and fair election. In People's Union For Civil Liberties (supra), the Apex Court, relying on its earlier decisions, has opined that the secrecy principle is integral to free and fair election, which can be removed only when it can be shown that there is any conflict between secrecy and the higher principle' of free election. 51. In the instant case, as discussed above, the election petitioner neither in the election petition has pleaded about non-availability of Part-I of Form 17C at the time of counting in respect of any of the polling stations nor any evidence was led by her in that respect. The Returning Officer, who has been examined by the election petitioner as PW-7, as discussed above, in his deposition did not also support the election petitioner in that regard. The said witness has also not stated that the Part-I of Form 17C in respect of any of the polling stations were not available at the time of counting. As discussed above, the petitioner also could not prove, by adducing any evidence, the violation of any provisions of the 1951 Act, 1961 Rules or the instruction to the Returning Officer issued by the Election Commission. No opinion, however, is expressed relating to the applicability of the secrecy principle in directing recount when EMVs are used, the same being not required to be gone into. 52. In view of the aforesaid discussion, the issue Nos. 1, 2 and 5 are answered accordingly. 53. No opinion, however, is expressed relating to the applicability of the secrecy principle in directing recount when EMVs are used, the same being not required to be gone into. 52. In view of the aforesaid discussion, the issue Nos. 1, 2 and 5 are answered accordingly. 53. This leads to the determination of the issue No. 3, which is quoted below:- Issue No. 3: Whether the order dated 13.05.2011 of the Returning Officer of No. 85 Rupahihat Legislative Assembly Constituency in rejecting the objection raised by the petitioner and in declaring the returned candidate/respondent No. 1 as elected is legal and valid? 54. The election petitioner in the election petition has pleaded that the application for recount was filed on 13.05.2011 at about 4.30 P.M. before the final declaration of result and preparation of Form 20. The election petitioner as well as her election agent, who are examined as PWs-1 and 2, in their depositions have also stated so. The Returning Officer (PW-7), who has been examined by the election petitioner as her witness, however, in his evidence has categorically stated that the said application was filed at about 5.20 P.M., after the counting was over and the result was declared. He has also deposed that the counting of votes started at 8 A.M. on 13.05.2011 and the last round of counting was complete before 3.40 P.M. The said application has been proved by the Returning Officer and marked as Ext.-A. The election petitioner as well as her election agent, namely, PWs-1 and 2, in their deposition have admitted filing of an application dated 14.05.2011 by the PW-2 (election agent) before the Chief Electoral Officer, Assam, disclosing filing of the application dated 13.05.2011 before the Returning Officer for recount The said document has been proved and marked as Ext.-C during cross-examination of the PW-2. It appears from the said document (Ext-C) that PW-2 himself has admitted that he filed the application for recount before the Returning Officer on 13.05.2011 at 5.15 P.M. The respondent No. 1/returned candidate also could prove, through the Returning Officer (PW-7) that the application dated 13.05.2011 was filed by Sri Nurul Islam (PW-2) at 5.20 P.M., by proving the endorsement of the Returning Officer in the said application (Ext.-A), which has been marked as Ext.-A(1). From the aforesaid evidence it is, therefore, evident that the application seeking recount was filed much after the declaration of result and preparation of Form 20 and not before that The Returning Officer, therefore, has rightly rejected the application seeking recount, the same having been filed after declaration of result and preparation of Form 20. Filing of an application for recount before the Returning Officer, however, cannot be a condition precedent for filing an election petition questioning the result of the returned candidate, since the result of the election, under Section 81 of 1951 Act can be challenged by an election petition by any candidate at such election or by any elector. [Reference may be made to a Kerala High Court decision in T.P. Seetharaman (supra)] However, in the event of filing such application, the contents of the same assumes importance and can be relied upon for the purpose of deciding the election petition, the same being a contemporaneous document. Issue No. 3 is accordingly answered. 55. In view of the aforesaid discussion, the issue No. 4 i.e. "whether the election of the returned candidate/respondent No. 1 from No. 85 Rupahihat Legislative Assembly Constituency is to be declared void under the provision of the Representation of People Act, 1951 and whether the election petitioner is entitled to an order for recounting of votes of the said Legislative Assembly Constituency?," is decided against the election petitioner and in favour of the respondent No. 1/returned candidate, as the election of the respondent No. 1/returned candidate cannot be declared void and the election petitioner is not entitled to an order of recount or re-poll, she having failed to make out any case. The election petition is, therefore, dismissed with cost, Petition dismissed.