JUDGMENT : The petitioner is the defeated candidate and the first respondent is a returned candidate in the election held on 08.06.2018 to the Karnataka Legislative Council from the North East Graduates Constituency, consisting of the districts, namely, Bidar, Kalburagi, Yadagiri, Raichur, Koppal, Bellary and Davanagere (Harapanahalli). 2. The counting of the votes was held on 12.06.2018. The petitioner lost the election and the difference in votes polled in his favour and the first respondent was 321. In the election petition, the petitioner has taken the ground that the postal ballots were not properly accounted; 45 postal ballots voted in his favour were rejected by the returning officer without giving any justification. 3. The second ground taken by the petitioner is that for indicating first preferential vote, numerical figure ‘1’ was written within the circular geometrical shape in some ballot papers, and in some other ballot papers the same numerical was written inside the geometrical shape, ‘square’. When the counting was taken up, the returning officer instructed the counting supervisor to consider those ballot papers in which numerical ‘1’ was written within a circle as valid and reject the ballot papers in which numerical ‘1’ was marked in the square. This resulted in the petitioner loosing 1500 votes which were cast in his favour. There was no justification for rejecting the ballot papers which contained the marking of the first preferential votes within the square. This was an arbitrary decision taken by the returning officer at the time of counting, though he was not empowered to take such a decision. 4. The third ground taken by the petitioner is that the returning officer ought to have rejected 750 second preferential votes cast in favour of the first respondent. The decision taken by the returning officer in regard to counting of second preferential votes was in violation of paragraph 25(iii) of the Handbook. 5. The petitioner therefore stated that had the recounting of the votes taken place, he would have secured additional 1545 votes and thus he would have emerged a successful candidate. The decision taken by the returning officer in regard to counting of second preferential votes was in violation of paragraph 25(iii) of the Handbook. 5. The petitioner therefore stated that had the recounting of the votes taken place, he would have secured additional 1545 votes and thus he would have emerged a successful candidate. Though he took objections at the time of counting, and gave a representation to the Election Commission of India on 27.06.2018, his request was not considered and hence he has prayed for recounting of the votes, declaration that election of respondent No.1 to the Karnataka Legislative Council from North East Graduates Constituency as null and void and another declaration that he is the duly elected candidate. 6. The first respondent, denying all the averments of the election petition, has specifically contended that during the counting, the petitioner was represented by agents at all the counting tables. The returning officer made elaborate verification of the counting in presence of all the candidates and their agents. The first respondent secured 18678 votes and that the petitioner secured 18447 votes. During counting, neither the petitioner nor his agents took objection when some votes were rejected. Even there was no claim made before the returning officer that the postal ballots were not properly counted. Having kept quite at that time, seven days after the declaration of results, the petitioner made a request for providing some documents to him and thereafter came up with election petition making false and baseless allegations. The counting was properly made, and there was no any illegality in the counting process. Therefore the election petition is worth rejection. 7. The other respondents have not contested this election petition. 8. From the pleadings the following issues emerged: ISSUES 1. Does the petitioner prove that postal ballot votes were not properly accounted? 2. Does the petitioner prove improper accounting while considering preferential votes? 3. Whether the petitioner proves that his interest is materially affected? 4. Does the first respondent prove that the election petition is liable to be rejected for the reasons stated in para 4 of his written statement? 5. Is the petitioner entitled to the reliefs he has claimed? 9. Issue No.4 was treated as preliminary issue. It pertains to specific contention taken by the first respondent in para 4 of his written statement. 5. Is the petitioner entitled to the reliefs he has claimed? 9. Issue No.4 was treated as preliminary issue. It pertains to specific contention taken by the first respondent in para 4 of his written statement. On 13.11.2020, learned counsel for the first respondent made a submission that the grounds taken in para 4 of the written statement would not survive, as the election petition had been verified in accordance with Section 83 of the Representation of the People Act, 1950 and that the required security deposit had been made. 10. When the matter was taken for inquiry, the petitioner himself adduced evidence as PW1 by filing his affidavit in lieu of examination in chief and produced documents marked as Ex.P.1 to P.19. The first respondent did not adduce evidence, but while cross examining PW1, his counsel confronted some documents which were marked as Ex.R.1 to R.57. 11. Sri. Badri Vishal did not address argument on each issue, but he just confined his argument by referring to paragraph no.33 of the election petition and Exs.P.14 and 18. He submitted that in para 33, it is stated that total number of votes polled was 55,471, whereas the votes considered for counting were only 55,384, thus there is a difference of 87 votes. In this regard he referred to Ex.P.14, the result sheet where the total number of votes counted is mentioned as 55,471. He referred to Ex.P.18 where the figure written is 55,384. Therefore it was his argument that from Ex.P.14 and 18, an inference may be drawn that there was no proper counting and in this view the petitioner has been able to establish probability in his case. 12. Sri. P.D.Surana met this argument by submitting that Ex.P.18 is not the final count. In Ex.P.18, the postal ballots are not included and this is admitted very clearly by PW.1 in the cross-examination. He referred to Ex.R.1 to argue that only 91 covers containing postal ballots were found to be in order and that they were considered for counting. PW.1 has admitted this aspect also. The answers given by him in the cross-examination show that neither the petitioner nor his agents took objection at the time of counting. If really, any vote was improperly rejected, nothing prevented them from taking objection at the beginning. The final result must be issued in Form No.20 and the petitioner ought to have produced it. The answers given by him in the cross-examination show that neither the petitioner nor his agents took objection at the time of counting. If really, any vote was improperly rejected, nothing prevented them from taking objection at the beginning. The final result must be issued in Form No.20 and the petitioner ought to have produced it. In this regard he referred to Rule 63 of the Election Rules. In Ex.P.19, the petitioner did not bring to the notice of the Returning Officer about the anomalies which he has highlighted in the election petition. Only as an after thought, the petitioner has made a futile attempt that the counting was not done properly. The entire cross-examination of PW.1 shows that there was no impropriety in the counting process. There is no merit in the election petition. In support of his argument he has referred to some judgments which I will refer to later. 13. I have considered the arguments of Sri Badri Vishal, learned counsel for the petitioner and Sri P.D.Surana, learned counsel for respondent No.1. I have perused the pleadings and the oral and documentary evidence. My answer to the issues are as below: Issue No.1 : Negative Issue No.2 : Negative Issue No.3 : Negative Issue No.4 : Does not survive. Issue No.5 : Not entitled 14. ISSUE NO.1:- One of the grounds taken by the petitioner is that the postal ballots were not properly counted. According to him they were not counted first. While cross-examining PW.1, the learned counsel for respondent no.1 has elicited certain answers from PW.1. He has answered that totally 119 postal covers were received and that only 114 covers were found to contain Form No.13A. And out of 114, the total number of 13A Forms which were found to be defective were 23 and only 91 postal ballots were taken for counting. Ex.R.1 was confronted to PW.1 in the crossexamination and that he admitted it. If Ex.R.1 is seen, the same figures are found there. Therefore only 91 postal ballots were available for counting. Further it is elicited from him that he has mistakenly stated that totally 155 postal ballots were received and further that he has incorrectly stated that 45 postal ballots were rejected without assigning any reason. If Ex.R.1 is seen, the same figures are found there. Therefore only 91 postal ballots were available for counting. Further it is elicited from him that he has mistakenly stated that totally 155 postal ballots were received and further that he has incorrectly stated that 45 postal ballots were rejected without assigning any reason. Another admission extracted from him is that the valid postal ballots were taken into account and the same is reflected in Form No.20 at the time of announcement of the results. Therefore from the answers elicited from PW.1 and Ex.R.1, a clear inference can be drawn that the petitioner has not been able to substantiate his case that the postal ballots were not properly accounted. Without any basis he has taken this stand in his petition. When he himself has clearly answered by admitting Ex.R.1, it can be inferred that at the time of counting, all the valid postal ballots were counted and considered at the time of announcing the election result. For this reason issue no.1 is answered in negative. 15. ISSUE NO.2: - Another grievance of the petitioner is that he lost 1,500 first preferential votes though they were all cast in his favour. He complains of improper counting of the preferential votes. The ground upon which he has founded his stand is that the Returning Officer gave instructions to the counting supervisors that the numerical figure ‘1’ indicating the first preferential vote written within a geometrical shaped circle should be considered and the figure ‘1’ written within a geometrical shaped square should be rejected. He has stated so in his affidavit filed in lieu of examination-in-chief also. In this regard he has been extensively cross-examined. He has stated that it was the oral instruction of the Returning Officer to the counting supervisors that numerical ‘1’ marked within a circle to be considered and the same figure marked within any other form should be rejected. In this regard, certain answers given by him in the cross examination falsify that what he has stated as mentioned above is not correct. It is elicited from him that the voter was supposed to write the preferential vote numerical within the box provided and that the voter was not supposed to write or mark anything other. In this regard, certain answers given by him in the cross examination falsify that what he has stated as mentioned above is not correct. It is elicited from him that the voter was supposed to write the preferential vote numerical within the box provided and that the voter was not supposed to write or mark anything other. His another answer is that in the ballot paper, square shaped box was provided for marking the numerical against the name of the candidate. That means, every voter must indicate the preferential vote by making a mark in the box provided for that purpose. It is his another admission that no circular shaped space was provided for marking the preferential vote. These answers are enough to hold that there is no basis for the assertion made by the petitioner that the Returning Officer instructed the voting supervisors to consider the preferential vote numerical written within a circular shaped space and reject the votes not conforming to it. 16. In regard to second preferential vote, the petitioner has stated in his petition and also in his affidavit that if the preferential numbers 2 or 3 is not marked and if preferential number 4 is marked, such ballot papers were also considered for counting as they were valid. In para 28 of the affidavit, he has stated that the Returning Officer instructed the counting supervisors that if there was no clear marking in the ballot paper about the second preferential vote, the preferential number succeeding the preference vote should be considered for the purpose of counting and the same should be counted in favour of the candidate against whose name any such succeeding numerical other than second preferential numerical had been marked. That means the petitioner probably wants to say that with respect to second preferential vote, even if an voter had not indicated the same by writing the numerical ‘2’, and any other numerical is written, that should be counted as second preferential vote. There is no basis for this assertion. In this regard he has admitted in the cross-examination that for the first time he took up that stand in his examination-in-chief affidavit. 17. Ex.P.19 is a letter dated 27.6.2018 written by the petitioner to the Regional Commissioner, Kalburagi Division who acted as Returning Officer. There is no basis for this assertion. In this regard he has admitted in the cross-examination that for the first time he took up that stand in his examination-in-chief affidavit. 17. Ex.P.19 is a letter dated 27.6.2018 written by the petitioner to the Regional Commissioner, Kalburagi Division who acted as Returning Officer. In para 2 of Ex.P.19, he has complained that the counting process was carried on very speedily and while separating the invalid votes and counting the preferential votes other than first preferential votes, he felt that proper procedure was not followed. He also requested for providing him copies of the documents and cumulative sheet of votes secured by every candidate. In the cross examination, he admits that the averments found in paras 20, 27 and 28 of the affidavit are made for the first time for the purpose of filing election petition. If para 20 pertains to instructions given by the Returning Officer to consider the numerical of the preferential vote in a circle shaped space, 27 and 28 relate to second preferential votes. If really the petitioner or his agents noticed any anomaly in counting the second preferential votes, nothing prevented them from bringing it to the notice of the Returning Officer at that time itself. 18. In para 35 of his affidavit, the petitioner has stated that he and his counting agents raised objection that the Returning Officer should duly record reasons for rejecting 11,611 votes and that no explanation was given. But in the crossexamination, he admits that he has no material in support of his statement in para 35 of his affidavit. He admits further that even in Ex.P.19, he has not mentioned about rejection of 11,611 votes. If this answer of PW.1 is considered, it is impossible to believe that 11,611 votes were improperly rejected. 19. Now coming to the point that the learned counsel for the petitioner highlighted in the argument, it may be stated that in Ex.P.18, the total polling is shown as 55,384. Ex.P.14 is the result sheet and there, the total votes polled is shown as 55,471. According to first respondent Ex.P.14 is not the final result sheet and the result sheet issued in Form No.20 is the final. In this regard he referred to Rule 63 of the Conduct of Election Rules, 1961. Ex.P.14 is the result sheet and there, the total votes polled is shown as 55,471. According to first respondent Ex.P.14 is not the final result sheet and the result sheet issued in Form No.20 is the final. In this regard he referred to Rule 63 of the Conduct of Election Rules, 1961. This Rule states that after completion of the counting, the Returning Officer shall record in the result sheet in Form No.20 the total number of votes polled by each candidate and announce the same. That means the result must be announced after making entries in Form No.20 which has not been produced by the petitioner. In the cross-examination, PW.1 has clearly admitted that in Ex.P.18 postal ballots are not included. He has also admitted another suggestion that Ex.P.4 actually shows the total number of votes polled and it includes the counted votes from all the ballot boxes and the postal votes. In Ex.P.4, it is mentioned that total number of rejected votes is 6583 and it was prepared on the basis of check list of the votes counted in every table in all the four rounds. The last column in Ex.P.4 shows the figure 55471 and this tallies with the total mentioned in Ex.P.14. In this view, the argument of Sri Badri Vishal that Ex.P.18 itself is enough to come to conclusion that the counting was not properly done, cannot be accepted. Therefore it may be concluded that the petitioner has not been able to prove that the preferential votes were not properly counted and issue No.2 is therefore answered in negative. 20. ISSUE NO.3:- It is quite obvious that the petitioner being the defeated candidate, may have a grouse that his interest is materially affected. The discussion on issues 1 and 2 shows that the grounds taken by him are unfounded. It may be further stated that when the counting process was in progress, the petitioner and his agents were present. If really any of them noticed violation of rules at the time of counting, nothing prevented them from taking objection. Rather the answers given by PW1 show that nobody took objection. He was very much present at the time when Form No.20 was prepared for announcing the final result. Some of his agents were also present. If really any of them noticed violation of rules at the time of counting, nothing prevented them from taking objection. Rather the answers given by PW1 show that nobody took objection. He was very much present at the time when Form No.20 was prepared for announcing the final result. Some of his agents were also present. After announcement of results, neither he, nor his agents gave in writing an application to the returning officer seeking recounting of votes on any ground. He has also stated that because he did not give a written representation demanding recounting, the returning officer signed Form No.20 and the process of counting was concluded. Thus it can be concluded that the counting was properly done. The interest of the petitioner is not affected at all. 21. The Supreme Court in the case of SATYANARAIN DUDHANI V. UDAY KUMAR SINGH AND OTHERS [1993 SUPP(2) SCC 82] has clearly held as below: “10. It is thus obvious that neither during the counting nor on the completion of the counting there was any valid ground available for the recount of the ballot papers. A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the Returning Officer. We are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered.” 22. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered.” 22. This Court in ELECTION PETITION NO.4/1999 (PINGAT YALLOJIRAO SIDRAI V. MALAGI SHIVAPUTRAPPA CHANNABASAPPA AND OTHERS) has held that, once Form No.20 is issued in accordance with sub-rule(6) of Rule 63 of the Conduct of Election Rules, entertaining any application for recounting is prohibited. 23. The discussion made above shows that the petitioner does not have any ground to complain of irregularity in counting. Therefore this issue is answered in negative. 24. ISSUE NO.5:- In view of the discussion on Issue No.1 to 3, it is concluded that the petitioner is not entitled to the reliefs claimed in the petition. Consequently, the following: ORDER Election petition is dismissed with costs.