Manilal Gowala vs Sukhendu Sekhar Dutta and Others

V.D. Gyani, Actg. C.J.

By this election petition u/s 80 read with Section 80A of the Representation of People Act, 1951 (hereinafter referred to as the Act), the election Petitioner Manilal Gowala, who was one of the candidates contesting the last General Election to the State Legislative Assembly Constituency No. 2, Patherkandi, District Karimganj held in April, 1996, has called in question the aforesaid election challenging the declaration of result dated 12.5.96 declaring the Respondent No. 1, Sukhendu Sekhar Dutta, to be duly elected. There were twenty candidates in the field including the election Petitioner and the returned candidate. Respondent No. 1, who contested the election as candidates of Indian National Congress (I) and Bharatiya Janata Party respectively. The other candidates have been arraigned as Respondents 5 to 22. Though severed with notices, they have not filed any written statement nor contested the petition.

Election to Patherkandi Legislative Assembly Constituency No. 2 was held on 27th April, 1996. There were 134 Polling Station in the entire constituency where polling was held on 27.4.96 but due to some irregularities in Polling Station Nos. 8, 34 and 36, the election Commission ordered re-poll in these three polling stations, namely, Polling Station No. 8 Alapur, Polling Station No. 34 and 36 Premamayee Vidyalaya, which was held on 30th April, 1996.

Counting took place on 8th May, 1996 and continued till 11th May, 1996. The result was declared on 12th May, 1996. The returned candidate Sukhendu Sekhar Dutta polled 20,618 votes while the election Petitioner polled 19,823 votes as per declaration of result in Form 21E under Rule 64 of Conduct of Election Rules. The election has been challenged mainly on the ground of alleged irregularities committed during counting. According to the election Petitioner his counting agents were intimidated by the Returning Officer, there was brow beating, at the slightest objection raised by the counting agents C.R.P.F. was called. The Petitioner was prevented from inspecting the seals of all Ballot Boxes at the time of opening, and also from inspecting the Ballot Papers. His charge is that the Presiding Officer/Returning Officer grossly abused his/their position, and the entire process of counting was fraught with gross irregularities and conducted in an illegal manner.

The irregularities as enumerated by the election Petitioner were:

(i) The counting hall, one of the rooms of Karimganj College measuring 39'' x 23'' was too small to accommodate 160 counting agents, twenty candidates, that apart, there were election agents and the candidates themselves.

(ii) Counting for both Assembly and Parliamentary Constituency was simultaneously going on - Seven Tables for each of these constituencies were arranged in the hall, which was overcrowded. There were nine candidates for Parliamentary Constituency, and had their 72 Counting Agents in the stoe hall.

(iii) Thus there were more than 252 persons in the hall, apart from the Returning Officer, Asstt. Returning Officer, Counting Supervisors, Counting Assistants.

(iv) On 9.5.96, the Remming Officer Shri Wahidur Rahman, Respondent No. 3 suddenly fell ill around 9 P.M. and had to be rushed to Hospital. It was only by afternoon of 11.5.96 that Shri T.U. Laskar, Asstt. Returning Officer, Respondent No. 4 was appointed Returning Officer in place of Shri Wahidur Rahman. It is the Petitioner''s charge that during this period the counting continued without there being any Returning Officer and by the time Shri Laskar was appointed the counting was over.

(v) About 1000 ballot papers counted in favour of Respondent No. 1 were invalid, the Petitioner himself claims to have detected 200 such ballot papers. The invalidity alleged is that in place of elector''s mark these ballot papers bore the Presiding Officer''s seal. Thus there was illegal, improper reception of votes.

(vi) Four ballot boxes did not bear the seals of the Presiding Officers. These ballot boxes related to Polling Stations Nos. 11, 17, 18 and 20, and complained by candidates including the returned candidate. Respondent No. 1 was not looked into.

(vii) An unsealed open ballot box was found in the verandah of the counting hall. One book containing Ballot Papers No. 0911532 to 0911999 and three books containing counter foils were found near the ballot box. It was video-taped. The Petitioner suspected it to be relating to polling station No. 109.

(viii) On 11.5.96, four additional tables were laid, for counting of votes of the Assembly Constituency. Since it was done without any prior notice, the Petitioner could not appoint his counting agents to attend to these four additional tables.

(ix) Round-wise position of number of votes received hy each candidate, number of rejected ballot papers and number of valid votes, never tallied with the number of ballot papers prepared into bundles given for counting at each table after mixing the bundles, thus totalling 1000 ballot papers on each table and in all 7000 ballot papers on all the seven tables, this itself shows that the counting was full of errors and not correct.

(x) That all doubtful ballot papers were taken away either by the Asstt. Returning Officer or die Returning Officer, to their table and die &te of these ballot papers was decided without even showing them to the Petitioner or his counting agents.

(xi) The Ballot Paper account in Part-I of form No. 16, was not prepared with accuracy, thus leaving scope for discrepancies in the number of ballot papers contained in the ballot boxes. These discrepancies were not reconciled before counting, thus vitiating the entire counting process.

(xii) The Petitioner filed application relating serious objections about counting process, on 11th around 12 Noon but the Asstt Returning Officer refused to take it saying that it should be filed before the Returning Officer. Since there was no Returning Officer, the Petitioner filed the same before the District Election Officer, latter on it was placed before the Returning Officer on 12.5.96 around 2.15 P.M. The Returning Officer by his order dated 12.5.96 rejected die Petitioner''s prayer for a recount The application and the''order passed thereon arc filed as Annexure-VI and VII, Ext.

The returned candidate, Respondent No. 1 has denied th$ above allegations and irregularities in his written statements. On the basis of pleadings the following issues were filmed:

Whether the arrangement in counting hall on the day of counting of ballot papers and the procedure followed was materially irregular contravening die rules receiving in sealed ballot boxes from polling Stations Nos. 11, 17, 18, 20 and 109, resulting in improper reception of 1000 votes counted in favour of Respondent No. 1?

Whether the Returning Officers, Counting Assistants an Supervisers acted in a partisan manner, aiding and abetting the Counting Agents of Respondent No. 1?

Whether the ballot boxes were not duly sealed and were tampered with?

Whether the election petition is barred by estoppel and acquiescence for faihire on the part of the election Petitioner to raise objection at the time of counting?

Whether the election petition has been filed mala fide to harass the Respondent No. 1?

Reliefs and costs.

While Mr. Goswami, learned Counsel appearing for the Petitioner highlighting the above irregularities, painted a picture of near chaotic conditions prevailing in die counting hall, and urged for a recount, Mr. Sahewalla, on the other hand, maintained that even if the Petitioner''s pleaded case is assumed to be correct, yet no case for recount is made out in view of the several judgments of the Supreme Court cited by him. Strong reliance has been placed by S. Raghbir Singh Gill Vs. S. Gurcharan Singh Tohra and Others, in support of his argument for recount. This was a case of election to Punjab Legislative Council. Going through the factual matrix of the case, the allegation was that four ballot papers were tampered with. Since it was an election to the Legislative Council by Members of Legislative Assembly, the strength of members of each political party was easily ascertainable and had in fact been ascertained, so much so, that those who cast their votes had even entered the witness box to testify to the preference given by them while casting their vote. It was an election by single transferable vote. Paragraph 7 of the aforesaid case makes the position very clear. It was in the peculiar facts of the case that inspection of ballot papers was allowed, yet the principle laid down in the case is no different from what has been laid down in several other cases. This case therefore on its own facts and is not of much avail to the Petitioner seeking recount.

Before dealing with the rival contentions as advanced at the Bar, it would not be out of place to recall to mind the principles governing scrutiny, inspection and re-count of votes, which has by now been well settled by series of decisions of the Apex Court. These principles are:

(a) a recount is not granted as of right but on evidence of good grounds, or pleadings that there has been an error on the part of the Returning Officer in improper rejection of valid votes or improper reception of invalid votes, the Petitioner is to prima facie establish that the errors are of such magnitude that the result of the election so far as it relates to the elected candidate is materially affected;

(b) secrecy of ballot is sacrosanct and should not be allowed to be violated on frivolous vague and indefinite allegations. Before inspection is allowed, the allegations made against the elected candidate, must be clear and specific supported by adequate statement of material facts;

(c) the Court must be prima facie satisfied that the order to grant prayer for inspection it is necessary and imperative'' to do full justice between the parties;

(d) the direction conferred on the Court should not be exercised in such a way as to enable the Petitioner to indulge in a wrong inquiry with a view to fish out materials for declaring the election void.

Before I deal with the alleged irregularities committed during the course of counting, I would like to take up the allegation regarding absence of Presiding Officers seal on four ballot boxes relating to Polling Station Nos. 11, 17, 18 and 20. There are two stages, sealing of ballot boxes after poll, attracting Rule 44 of the Conduct of Election Rules, 1961 and scrutiny and opening of ballot boxes at the counting table, attracting Rule 55. The relevant pleadings are to be found in paragraphs 16, 17 and 18 ofthe election petition. Petitioner''s case is that before opening the ballot boxes, the Petitioner or his counting agents were not given any opportunity to verify as to whether the inner paper seal was intact? The boxes were opened without showing them to the Petitioner or his counting agents.

Coming to the evidence on the point, it is significant to note that so far as the first stage of sealing the ballot boxes after poll (Rule 44) is concerned, there is no specific pleading in the petition except for a reference to what is required to be done under Rule 44. Secondly, there is no evidence, no polling agent who could have deposed to any irregularity in sealing of ballot boxes after pell, has been examined by the Petitioner whose total evidence consists of his won statement, that of his election agent Biswa Ranjan Dhar, P.W. 3 and his two counting agents P.W. 4 Shiv Prasad Tiwari and P.W. 5 Rajendra Singh. Even the election Petitioner P.W. 2 and his election agent P.W 3 are silent on the point so far as sealing of ballot boxes after poll is concerned.

Now coming to the later stage the opening of ballot boxes at the counting table (Rule 55) although the Petitioner as noted above has averred that neither he nor his Counting Agents were allowed to verify if the inner paper seal of the box was intact but there is not even a whisper about it in his own evidence let alone that of the two counting agents. In fact it is this inner paper seal which is crucially important, the other seals of the outer cloth cover may get damaged in transit but the inner paper seal must remain intact, that is the test to verify any allegation of tampering of ballot boxes. Merely making allegations in the petition without any attempt at substantiating the same by cogent convincing evidence is hardly of any help to die Petitioner who in his own statement before the Court does not even suggest that he was not allowed to inspect the ballot boxes with a view to ascertain and verify if the paper seals on the ballot boxes were intact. The evidence of his counting agents P.Ws. 4 and 5 and also the evidence of election agent P.W. 3, suffer from the same infirmity. None of them has stated that he was prevented from inspecting die ballot box for ascertaining the intactness of its inner paper seal.

Mr. Goswami, learned Counsel for the Petitioner has referred to Ext. P/5 and Ext. 6, contemporaneously lodged protest and complaint which speaks for itself. Both these documents are reproduced below for ready reference:

To Ext. P/6

The Returning Officer, No. 2, Patharkandi,

Sir,

We, the undersigned contesting candidates/agents have the honour to lay before you the fact that the ARO is not giving any cognizance to our objections. Whenever any objection is raised the ARO calls for CRPF and no hearing/attention is being given. Since this is undemocratic, we are not going to accept and tolerate this sort of attitude. If such a situation continues, we will be compelled to leave the counting hall.

We further request you to stop counting of ballots in the unsealed boxes numbering 17 and 20.

Yours feithfiilly,

RabiaNinia 2. Sukhendu Sekhar Dutta 3. Manilal Goala 4. Mihir Kanti Bhattacharjee 5. Aftabuddin Ahmed 6. Gopendra Das 7. Jyotirmoy Das 8. Thakur Chand Goala 9. Joyraj Singh Goala 10. Daulat Rabidas 11. A.S. Hussain Ahmed, Counting Agents of Mainuddin Ahmed.

Copy to:

Central Observer,

Camp: Karimganj

Biswa Ranjan Dhar, Ext. P/6

President, P.O. Hattikhira,

Block Congress (I) Committee Dist.

Karimganj, Assam

Padiarkandi Phone: BCH 87327 Ref: Date: 8.5.96

To

The Retuming Officer, L.A. 2 Patharkandi Constituency

Sub: Complaint against the Box of P.S. Nos. 17, 11, 18 and 20.

Sir,

While placing the ballot boxes of above P.S. No. It is that there is neither sealed nor anything i.e. the boxes are found open and there is apprehended of tampering.

You are therefore, requested to stop counting and shifting papers to stop. Counting therefore requested to stop counting/shifting ballot paper to the above boxes of the said counting.

Please acknowledge the objection.

Yours faithfully,

Submitted on 8.8.96 Sd/- Illegible at 1.45 P.M. Station Agent of Manilal Goala.

Let us now examine the evidence, P.W. 3, his (Petitioner''s) election agent who submitted Ext. P/6, and has stated:

Ballot boxes were brought from the strong room. When the ballot boxes were brought from the strong room, I noted that there was no markin cloth to cover those nor there were seal. And these ballot boxes were from Centre Nos. 18 and 20. There was no seal nor cloth cover of the ballot boxes of these two centres. At that time the Respondent No. 1 was present and other candidates as well. I reported this fact to Manilal Goala. Manilal Goala came into the enclosure. Two more boxes without cloth-cover and seal were noted. I gave a written complaint to Assistant Returning Officer Shri U. Laskar. I had retained Xerox Copy of the complaint submitted by me. I gave the copy to Shri Monilal Goala. The other two ballot boxes were from Centre Nos. 11 and 17. Ext. P/6 is the complaint submitted by me.

The same witness in his cross examination stated-

I could identify the ballot boxes from the tag fastened to it. The tag with blue ink dot pen. The boxes were shown to the election agents including me. When I saw the two other boxes without cloth cover and seal the Petitioner, Respondent No. 1, Kamrul Haque and Mihir Bhattachaijee were also there.

... ... ... ... ... ... ... ... ... ... ... I have checked the number of ballot boxes which were not found covered with clothes. Except the tagged, there was no other marking on the ballot box. There were sufficient light when I saw the ballot box. Monilal Goala has also seen the ballot boxes and examined the tagged. I gave a written complaint within an hour. Those who were present along with me had also seen the boxes. Other persons who were present also complaint about lack of seal and also without wrapping the boxes with clothes.

It was highlighted and emphasised that even the returned candidate Respondent No. 1 was one of the signatories to Ext. P/5 but even if these documents are taken to be correct in their contents (leaving aside for a while the question how much of it is legally proved), yet there is no indication either in Ext. P/5 or Ext. P/6 that the inner paper seal on tfie ballot boxes was either missing or tampered with.

It is important to note one important point emerging from the evidence as quoted above. Contrary to the pleaded case that the ballot boxes were not shown to the Petitioner or his agents, at the time of opening his own election agent P.W. 3 has categorically stated that the boxes were shown before being opened, and shown not only to him but to many more others who were present including the election Petitioner himself. Thus there is no substance in the allegation tiiat the Petitioner or his agents were either not shown or prevented from inspecting the ballot boxes attfie time of opening at the counting table.

As regards the submission that even Respondent No. 1 the returned candidate was one of the signatories to the joint complaint Bet P/5, even if it is taken on its face value without taking into account what the Respondent No. 1 has to say about it in his evidence, yet. Ext. P/5 read as it is more in the nature of complaint against the "undemocratic attitude" of the Assistant Returning Officer. Of course there is reference to "unsealed boxes numbering 17 and 20" but no reference at all to absence of paper seal on the ballot boxes.

Now turning to the evidence, the returned candidate as R.W. 1 has testified:

Except for noticing two ballot boxes without outer seal, no other irregularities were noticed. It was in the morning hours of 8th when this irregularity was noticed. At that time the candidates present raised objection and though of lodging a complaint, they asked me to write a complaint which I did. The complaint which was written by me remained with me. It was not submitted although we approached the Asstt Returning 0fficer Mr. U. Laskar bringing it to his notice die fact that to ballot boxes were without outor seal. He explained to us that it is an extra protection we should see whether the internal seal is intact and we found that the internal seal of the ballot boxes were intact. Thus all of us were satisfied.

In his cross-examination, he stated:

Ext. P/5 the complaint is in my hand. The time on Ext. P/5 is not legible. P/5 bears the time 1.45. The two ballot boxes without seal on the outer cover were definitely noticed before 12. It could not be between 8.30 to 9. It was reported to Mr. Laskar as per Ext. P/5. Before submitting Ext. P/5 we had a discussion. I have also personally seen for myself the two ballot boxes. I described Ae ballot boxes as "unsealed". It relates to Polling Centre Nos. 17 and 20.1 did not submit Ext. P/5 to Mr. Laskar. The complaint Ext. P/5 was addressed to Returning Officer Wahidur Rahman. I have not produced the complaint as written by me before this Court. The witness volunteers the complaint which was with me.

Howsoever liberally appreciated, the Petitioner''s evidence clearly shows that absence of seals on the ballot boxes related to only two polling stations 17 and 20 and the seals were not found on the outer cover and the complaint Ext. P/5 was not even submitted after the Asstt. Returning Officer explained the position of sealing to tte complaining candidates who were all testified with his explanation.

P.W. 1 the election Petitioner does not state in his evidence that the complaint Ext. P/5 was submitted either by him or any of the signatories. It is not his claim even. All that he has stated in his evidence is that a Photostat copy of the written protest (Ext. P/5) has been filed to him along with the election petition as Annexure-m and diat he has called for die original. This witness P.W. 1 has stated that those documents as were required, as per summons Ext. P/1, were not available. One of the documents as per test attached to the summons Ext. P/1 is the complaint Ext P/5. It is nobody''s case that it was presented to the Returning Officer. The Respondent No. 1 has categorically stated that after the position of sealing on ballot boxes was explained by the Asstt. Returning Officer it was not submitted. The election Petitioner does not say that he submitted it or any of the signatories to Ext. P/5 submitted it. The Respondent No. 1 has further explained the circumstances how a photostat copy came to be prepared. The election petiticxier has clearly indulged in loddng up evidence, a futile bid on hispart, to support his allegation. Thus viewed from any angle, the above allegation as made, fails.

So far as the arrangements made in the counting hall, its size, the number of counting tables, the seating accommodation provided to the counting agents, all resulting in a mess, even if the allegations as made are taken to be correct, yet no case is made out for a recount. The relevant pleadings on the point are contained in paragraphs 12 and 13 of the election petition. What is significant to be noted is that even if die pleaded case is taken as it is, yet there is lack of pleadings as regards improper reception or refusal or rejection of any vote or the reception of any vote which is void. Merely stating that "it also affected the result of the counting and has materially affected the result of the election", is not enough.

Mr. Goswami invited attention to the complaint and prayer for re-counting as submitted by the election Petitioner on 12.5.96, Ext. P/2. Even this document merely refers to some anomalies allegedly committed during the course of counting. There is no specific mention as to what those materials were. The grievance made by the election Petitioner in this complaint Ext. P/2 was that his votes were wrongly rejected. But surprisingly enough there is not a whisper of wrongful improper rejection of valid votes polled in favour of the Petitioner. The counting of votes is governed by Rules 56 to 59 ofthe Conduct of Election Rules, 1961 and Rule 60 enjoins the counting to be continuous, while Rule 63 provides for re-count of votes and Sub-rule (2) of Rule 63 requires the Statement of Grounds on which the demands for re-count is made. Going through Ext. P/2, it vaguely refers to some anomalies and wrongful rejection of votes claimed to have been polled in favour of the election Petitioner, no particulars have been given by the Petitioner, let alone particulars, even there is no specific pleadings on the point.

It is significant to note that no contemporaneous complaint relating to irregularities in counting of votes was made either by the election Petitioner or his election agent or counting agent. There is no particulars of number of round, counting tables where irregularity was detected, has been given in the election petition. A general grievance is made that the hall was crowded by the counting agents of the contesting candidates numbering 20. Mr. Goswami described the condition as mere chaotic. The Supreme Court in a comparatively recent judgment as reported in Ajit Singh Vs. Bansi Singh and Others, a case which is in close proximity to the facts of the case at hand, dealing with the sitting arrangements, calling for police has held:

It may be stated here that an official video photography of the counting process was taken and it transpires that the video tape which was placed before the Court was not dubbed or edited or manipulated in any manner whatsoever and the Court had occasion to see the original video tape. We have been taken through the evidences-by the learned Counsel for both the parties and also the decision of the High Court. It appears to us that there was reasonable apprehension of disturbances at the time of counting of votes and Returning Officer had justification to placb police officials in the counting hall so as to avoid any disturbance. It is an admitted position that large number of candidates contested the election and if election agents of a large number of candidates are to be admitted at the place of counting the ballot papers, the Returning Officer had no alternative but to place benches in rows so that the election agents could sit in such benches placed in row on the basis of "first come first sit". In our view, it has been clearly established by evidence that whoever had occupied the first row of the benches on the basis of coming first was allowed to sit there and whenever such person left his seat the other persons sitting in the second or third row had come and occupied the said seat. Placing offence, in the facts and circumstances of the case, was necessary to prevent any untoward situation developing at the time of counting. Such precautionary measures taken by the Returning Officer, in our view, cannot be held to be unjustified thereby rendering the counting process invalid. It may also be indicated that in the central table the Returning Officer and the candidates were allowed to sit and from such place, the process of counting could be seen by the persons sitting at the central table. The learned Judge, in our view, has given detailed reasons as to why the contentions as improper counting of ballot papers for not giving reasonable access to the election agents to see the counting should not be accepted. Such finding, in the facts and circumstances of the case, is fully justified and we do not find any reason to take a different view.

The other grounds of seeking re-count as pleaded by the election Petitioner relates to improper reception of 1000 votes in favour of the Respondent No. 1, who was declared elected. The alleged invalidity in respect of these 1000 ballot papers is that as against the name of the candidate there was no cross seal, the electors mark as is required to be put by yoter but in its place rubber seal mark of the Presiding Officer of the Palling Station was put. Referring to Rule 38 of the Conduct of Election Rules Mr. Goswami, learned Counsel for the election Petitioner argued that other ballot paper before it is issued to elector has to be stamped on the back with such distinguishing mark as the Election Commission may direct and the Presiding Officer is required to sign the same. The grievance made by the election Petitioner is that 1000 ballot papers which did not have the mark put by any elector but bore the numbers of polling centre in place of the elector''s mark. The election Petitioner himself claims to have detected 200 such ballot papers while his election agent P.W. 3 Biswa Ranjan Dhar and one of the counting agents Rajendra Singh, R.W. 5 detected 800 or more such ballot papers. Too obviously, these 1000 ballot papers could not have been detected by one counting table and in the same round of counting even if the Petitioner''s case is to be believed but the Petitioner has not choosen any material particulars either about the round of counting or the number of counting table, or the number of ballot paper, not even the single one, in his pleadings. Although pleadings as made cannot be said to be sufficient in material particulars, yet let us see how they have been substantiated by evidence.

Advertmg to the evidence, P.W. 5 except for a vague answer that in place of cross mark on a symbol of a particular candidate the seal of the Presiding Officer was found on the ballot papers, that too in reply to a highly suggestive question, has nowhere stated that either he or along with the election agent P.W. 3 found 800 Such ballot papers during the course of counting. P.W. 3, the election agent, after having testified to the effect that he did not accompany the seven contesting candidates to the Returning Officer for submission of the complaint, Ex. P/6, was put the following question:

Q. Did you notice any irregularity in counting on 8th?

Ans : Yes, I did. On many ballot papers at the place where the elector''s seal is required to be put, the Presiding Officer''s seal with his signature was put there. The seal that I saw is the seal which the Presiding Officer used. It was found on the front side. I objected to the reception of such ballot papers, but I was again rebuked by the A.R.O. There were our counting agents Rajen Singh, Sivaprasad Tiwari, Dhiren Singh and Bharat Yadav were also present when I saw these seals on the ballot papers. I saw about 1000 of such wrongly sealed faulty ballot papers. Counting of votes concluded on 11th by 11.30 A.M. On 10th at about 1.30 A.M. when the counting of votes for Loksabha seats were over, 4 more tables were added to the counting tables of Assembly seat. It was objected too by us on the ground that we had not the required number of counting agents to attend to the 4 tables. Counting of votes for Assembly seat started in these newly added four tables around 2/2.30 A.M.

Q. What other irregularities were seen/ noticed by you?

And : There was no seat for us, we were tired and no food were arranged.

Another grievance made by the election Petitioner is regarding the addition of four counting tables on 11.5.96 on which he could not appoint his counting agents. On his own averments, the reason given for adding these four additional counting tables was that by that time the counting for the Lok Sabha seat was over, as per paragraph 25 of the election petition. In para 22 thereof the Petitioner has averred that the counting process was abnormally slow on 8.5.96 when it started at 8.00 A.M. and continued till about 11.30 A.M. on 11.5.96. The Petitioner is complaining of abnormal slow process of counting and at the same time when four more tables were added at the fag end of die counting a grievance is made diat as a result of increase in the number of counting tables, counting continued thereon without any counting agent of the Petitioner. The allegation made is that it gave a handle to the Counting Assistants and Supervisors and the Asstt. Returning Officer to manipulate the number of votes as there was no counting agent of the Petitioner on these additional tables. Thus depriving the Petitioner of the opportunity to inspect the ballot papers. Here again material particulars are lacking. The Petitioner has not disclosed the rounds of counting which had already taken place prior to the addition of four more counting tables. There is not even a whisp in the evidence that the Counting Asstt. and Supervisors who were appointed to these additional four tables manipulated the number of votes. It is significant to note at this stage, as admitted by the Petitioner himself, P.W. 2, that his own son was working as Coimting Assistant in the counting hall but he further added that it was only on 8th for about an hour. There is no mention either in the pleading or in the evidence of the election Petitioner of any contemporaneous application or complaint as regards the addition of counting tables so made by him, so much so, in his application dated 12.5.96, Ext. P/2, seeking re-count, this fact of addition of four tables has not been stated. In diis state of evidence and pleadings the allegation made, cannot be said to have been substantuted. Although Petitioner''s election agent P.W. 3 goes a step ahead than the pleaded case itself The electicm Petitioner in his pleaded ease as contained in paragraph 25 has not stated a word about any objection being raised as regards the addition of four tables, but his election agent, P.W. 3, in his evidence, as aheady quoted above, goes a step ahead of the election Petitioner in saying that an objection was raised. It is a crude improvement of the case. There is no substance in the allegation that the addition of four tables was intended to manipulate the counting of votes.

The Petitioner has also alleged that before the commencement of counting on 8.5.96, one unsealed open ballot box was found lying on the Verandah of the counting hall. Petitioner''s apprehension is that this ballot box relate to Polling Station No. 109. There is no foundation for such an apprehension. It is his pleaded case that a video tapping was also done by the authorities, yet the same has not even bron sought to be produced. The Respondent ofcourse has denied all these allegations in his written statement as well as in his evidence. According to him the counting of ballot papers was completed around 9.10 A.M. on 11 th May. What is significant to be noted is that this fact of addition of four tables was not even suggested to this witness who was very much in the counting hall and one of the contesting candidate like the election Petitioner. There was two other witnesses R.W. 2 and R.W. 3, Shri Anup Das and Satyabrata Roy respectively, the counting agents of the Respondents present in the counting hall. It was not even suggested to any of them in their cross-examination that there was an addition of four counting tables at the fag end of the counting. The fact itself has not been put to them and one of them Satyabrata Roy is a witness who had contested two General Elections from the same Assembly Constituency, and he could well have testified to the fact if there was any such addition of tables.

In view of the foregoing discussion, the allegation, as made by the election Petitioner as regards addition of four counting tables, must be rejected and is accordingly rejected.

It is the pleaded case Aat the Returning Officer, Mr. Wahidur Rahman fainted in the counting hall on 9.5.96 around 9.00 P.M. and had to be rushed to the hospital. According to him the Asstt. Returning Officer Mr. T.U. Laskar was appointed as Returning Officer vice Shri Wahidur Rahman only on 11.5.96 in the afternoon. He has further pleaded that during tiie period from 8/9-00 PM. of 9.5.96 to the afternoon of 11.5.96, there was no Returning Officer and by the time Mr. T.U. Laskar was appointed as Returning Officer, even according to the election Petitioner, counting of votes was already over. Taking die Petitioner''s case as it is, tiie question is how has it affected, much less, adversely affected the election Petitioner? If someone in the counting hall suddenly falls ill and is required to be rushed to the hospital, can it be said by any stretch of imagination that the whole counting process had either come to a grinding halt? Hiat is not even the pleaded case of the Petitioner. How is it run illegal in absence of die Returning Officer, the Asstt. Returning Officer Mr. T.U. Laskar was admittedly present to supervise the counting and even otherwise, the Returning Officer is not always confined to a particular counting hall, he is to siqiervise the counting of votes ofodier constituracies in the district as well. It is just a matter pf chance that the Returning Officeir fainted in die counting hall which can occur to any one, at any point of time, at any place, it cannot be averted. But that does not mean that the counting process in absence of die Returning Officer is rendered illegal. There is no force in die contention as advanced by the learned Counsel for the Petitioner.

As already noted above, the principles governing re-count, as called out fipom series of decisions of the Supreme Court as reported in-

Suresh Prasad Yadav Vs. Jai Prakash Mishra and Others,

Bhabhi Vs. Sheo Govind and Others,

R. Narayanan Vs. S. Semmalai and Others,

Arun Kumar Bose Vs. Mohd. Furkan Ansari and Others,

1993 SC 367 (Satyanarayan Dudhoni v. Uday Kr. Singh and Ors.)

Charan Dass v. Surinder Kumar and Ors.,

Smt. Ram Rati Vs. Saroj Devi and others,

When applied to the facts of the present case and the allegations decided on the anvil of diese principles this election petition must fail. It is accordingly dismissed with costs of Counsel fee of Rs.5,000/-.