Paraladh Singh vs Smt. Vidya Devi, M.L.A. and Others

G.C. Garg, J.—Paraladh Singh-petitioner filed this election petition under Sections 80, 81 and 100 of the Representation of People Act, 1950 (for short ''the Act") challenging the election of Vidya Devi, the returned candidate to the Haryana Vidhan Sabha from 80 Darba Kalan Assembly Constituency.

Facts relevant for the disposal of this petition may be noticed thus;

Petitioner No. 17 other candidates contested the election of the Haryana Vidhan Sabha, which was held in the month of April, 1996, from the 80-Darba Kalan Assembly Constituency. Petitioner contested the election on the Haryana Vikas Party ticket whereas respondent Vidya Devi contested on Samta party ticket. Counting of ballot papers commenced on 8.5.1996 at Arya Senior Secondary School, Sirsa and concluded on 10.5.1996. The total Valid votes polled for the said election were 95,937 out of which 36,944 were polled in favour of Vidya Devi respondent and 36,750 in favour of Paraladh Singh petitioner and consequently, respondent Vidya Devi was declared to have been elected to the Haryana Vidhan Sabha from that constituency by a margin of 194 votes. Result of the election was declared on 11.5.1996.

As per the averments in the election petition, four tables were arranged in the counting hall for the counting of votes and there was another table for the Returning Officer, Shri Dalip Singh Bishnoi, District Development and Panchayat Officer, Sirsa. It was alleged that the Returning Officer was a very close associate of Ch. Bhajan Lal, Ex-Chief Minister, Haryana and he was from amongst those 30 persons promoted by the Government of Haryana during the Congress-1 rule, whose selection is under challenge in the High Court. As per the directions of the Election Commission of India, all the ballot papers were to be first put in a big box and after mixing and sorting out, the same were to be converted into packets of 25 ballot papers each. Twenty packets were to be distributed in every round at each table. The counting agents appointed by the candidates were not allowed to sit near the tables and they could only see the ballot papers being counted from some distance through an iron net. The petitioner does not have any grouse about the counting of votes upto the 21st round. According to him when the counting of 21st round was in progress on 10.5.1996, he was leading by 1669 votes. According to the petitioner, initially there were only four tables for counting of votes for the Vidhan Sabha election, but after the completion of counting of 21st round, three more tables were added. Thereby increasing the number of tables from 4 to 7. The petitioner had appointed only four counting agents i.e. one for each table, that on the sudden increase of tables, he was not able to arrange more counting agents to keep an eye on the counting at each table. It is alleged that counting upto 21st round was completed in the morning of 10.5.1996 and counting of remaining four rounds was done in less than three hours. It has been specifically alleged that after the counting of 21st round, about 700 to 800 votes, which has been cast in favour of the petitioner, were not counted in his favour and another about 150 votes, which were polled in his favour, had been wrongly rejected as invalid.

It was also alleged that when the petitioner noticed irregularities being committed in the counting, he moved an application on 10.5.1996 at 5.30 PM to the Returning Officer for re-counting of votes. A copy of that application has been placed on record as Annexure P-1. The Returning Officer without specifying any reason dismissed the application. The petitioner also sent fax messages to the Election Commission in that behalf and the Election Commission asked the Returning Officer to pass a speaking order, but even then no order was passed by him. According to the petitioner, names of the counting supervisory staff were mentioned in the order issued by the Returning Officer including the reserved staff, but one Ghanshaym Dass was put on duty on 24th round of counting on table No. 2 whose name was not mentioned in the names of the counting staff or in the names of reserve staff. Apart from that the names of counting supervisors on table No. 2 in rounds 24 and 25, and one table No. 3 in round 23 were not mentioned. According to the petitioner, he suffered double jeopardy. On the one hand, 20 votes, which were infact polled in his favour, were counted in favour of respondent Vidya Devi and on the other, this resulted in decrease of 20 votes in the total votes polled in favour of the petitioner. Besides this, a number of votes polled in favour of the petitioner were counted in favour of the independent candidate and those polled in favour of the latter, were counted in favour of respondent Vidya Devi.

It was specifically alleged that in 22nd and 23rd rounds of counting, 70 and 25 votes respectively which were polled in favour of the petitioner were wrongly rejected and apart from it, nine notes which in fact deserved to be declared as invalid, were counted in favour of the returned candidate. In round No. 24, thirty-five votes, which were believed to have been polled in favour of the petitioner, were put in the bundle of votes counted in favour of respondent Vidya Devi. In the last round, only 3330 votes were counted out of which the petitioner secured 902 votes. In this round, 90 votes were polled in favour of the petitioner were mixed up in the bundle of the returned candidate and thereby the petitioner lost 220 votes which materially affected the result of the petitioner. It is further alleged that during the course of counting the Returning Officer did not make proper announcement of the counting of various rounds and he stopped making announcements after the completion of 21st round. On the premises of these facts, it was alleged that due to the irregularities committed in the counting and violation of various rules, result of the petitioner was materially affected and, therefore, the election of respondent Vidya Devi to the Haryana Vidhan Sabha may be quashed and instead, the petitioner may be declared to have been elected to the Haryana Vidhan Sabha from the said Assembly Constituency.

Notice of the election petition was issued to the respondents. In response to notice, only respondent Vidya Devi has put in appearance and filed a detailed written statement. Other respondents were proceeded against ex parte.

The contesting respondent raised various preliminary objections in the written statement, namely, the facts in the petition have not been pleaded in accordance with the relevant provisions of the Act. It was specifically alleged that the petitioner has not supplied true copies of the election petition to the respondent at the time of presentation of the petition and this is a clear violation of the mandatory provisions of Section 81(3) of the Act. It was also alleged by way of preliminary objection that the petitioner had relied upon the final result sheet (form 20) in order to show that he was winning in some of the rounds, but he did not reproduce the contents of the final result sheet in the election petition so as to enable the respondent to give effective reply, which is a part and parcel of the election petition, nor even a copy thereof has been supplied to the respondent. On merits, it was specifically denied that any irregularity was committed in the counting of votes. Dates of commencement of counting, conclusion of counting and declaration of result were admitted as correct. It was however, denied that the petitioner was leading by a good margin of votes. It was rather emphasised that the answering respondent was leading in every round after the 14th round of counting. The respondent denied knowledge of any application having been made by the petitioner to the Returning Officer. It was, however, alleged that from the contents of Annexure P-1, it was clear that the application of the petitioner was premature and had not been made in accordance with Rules and was thus rightly rejected by the Returning Officer. It was also specifically denied that after 21st round the number of table was increased from 4 to 7 and that the petitioner had not appointed counting agents on all the tables on which the counting was done. It was further stated that the petitioner has not given any detail of votes, which are alleged to have been wrongly declared invalid. After the conclusion of counting of each round, the number of rejected votes was announced. It was specifically denied that any person other than those appointed for counting of votes and the reserve staff, was allowed to count the votes. It is also denied that Ghanshyam Dass was appointed for counting of votes on table No. 2 in the 24th round of counting as alleged. As a matter of fact, the answering respondent denied all the material facts in regard to irregularities and illegalities in the matter of counting of votes as alleged in the petition. It was also alleged that no objection whatsoever was raised by the petitioner regarding rejection of votes. It was stated that the answering respondent got majority of votes and was thus rightly declared to have been elected to the Haryana Vidhan Sabha from the 80-Darba Kalan Assembly Constituency. In the end, it was prayed that the election petition deserves to be dismissed.

Petitioner filed replication controverting the allegations made in the written statement and reiterating those pleaded in the election petition. It was re-asserted that counting tables were increased from 4 to 7 without the consent of the petitioner, as alleged in the election petition and as a result, the petitioner was not in a position to appoint his counting agents on the remaining three tables. It was stated that there was violation of various rules and procedures, and the directions issued by the Election Commission of India and consequently, the result of the petitioner was materially affected. It was also prayed that in view of the above irregularities and illegalities in the matter of counting, the election of respondent Vidya Devi is liable to be set aside.

After hearing learned counsel for the parties and having regard to their respective pleadings, the following issues were framed :-

1) Whether paragraph 10 and 14 to 19 of the Election Petition are liable to be struck of being vague and lacking in material particulars and also not being in accordance with the provisions of Sections 83 and 87 of Representation of People Act, 1951 and if so, its affect? OPR.

2) Whether the Election Petition is liable to be dismissed for con-compliance of Sections 81(3) and 83 of the Representation of People Act, 1951? OPR.

3) Whether the result of election of respondent No. 1 has been materially affected on the grounds mentioned in the election petition and the petitioner is entitle to be declared elected? OPP.

4) Whether the election of the returned candidate is liable to be set aside on the grounds mentioned in the Election Petition? OPP.

5) Whether material irregularities committed by the returned candidate during the counting of votes entitle the petitioner for re-counting of votes? OPP.

6) Relief.

During the pendency of the election petition when the parties had concluded their respective evidence, the petitioner moved Civil Misc.14-E of 1997 u/s 151 of the CPC seeking permission to place on record an attested copy of the letter dated 11.5.1996 written by the Returning Officer to the Deputy Commission-cum-District Election Officer, Sirsa. The petitioner also moved another Civil Misc.15-E of 1997 with a prayer that sample checking of the ballot paper of any of the four rounds 22 to 25 of 8-Darba kalan Assembly Constituency may be got done.

Before recording findings on the issues framed in the election petition, I deem it appropriate to dispose of these applications, which were resisted by the answering respondent by filing replies. It was submitted in reply to Civil Misc. 14-E of 1997, that election law is neither a fundamental nor a civil right but it is a law created under the statute, so the petitioner cannot be allowed to place the letter in question on the record, especially at this belated stage. In reply to Civil Misc.15-E of 1997, it was submitted that no case was made out for ordering sample checking of ballot papers of any of the rounds mentioned in the application. The answering respondent has referred to various Judgments of the Supreme Court in support of her reply.

After hearing learned counsel for the parties and on a consideration of the matter, I am of the opinion that the applications deserve to be dismissed. In Civil Misc.14-E of 1997, the petitioner has sought permission for placing on record a letter dated 11.5.1996 only on the ground that the same could not be produced on record due to inadvertence. I have gone through the said letter and the contents thereof. The only fact which the petitioner wants to bring on record by producing this letter in evidence had already been pleaded by him in the election petition and the petitioner has already produced evidence in that behalf. The petitioner has examined officials from the office of the District Election Officer, Sirsa and the letter in question could have been put to those witnesses and the same could be got exhibited. The fetter even if allowed to be placed on record now cannot be read in evidence because this has not 6een proved on record in accordance with law. I, therefore, see no ground to accept the prayer made in the application which is hereby dismissed.

As regards, Civil Misc.15-E of 1997, the petitioner has prayed for sample checking of ballot papers of any round of the rounds 22 to 25. True, on the basis of pleadings in the election petition and the evidence led, re-count of ballot papers can be ordered, if the facts and circumstances so warrant, but the order of re-count cannot be made as a matter of course. It is only after the Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that re-count can be ordered. Even otherwise, this application does not deserve to be considered in the wake of specific issue, being issue No. 5 having already been framed, namely, whether material irregularities committed by the returned candidate during the counting of votes entitle the petitioner for re-counting of votes? Once this issue is decided in favour of the petitioner the relief asked for in the present Civil Misc., would automatically stand granted and in case the issue is decided against the petitioner, the prayer for re-counting or sample checking of ballot papers would also stand turned down. This application is, therefore, dismissed as the point raised is fully covered by issue No. 5.

The findings on various issues are as under:-

ISSUE No. 1

Section 83 of the Act reads thus:-

Contents of petition.- (1) An election petition -

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice alleged including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of the pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and Verified in the same manner as the petition."

A reading of the allegations contained in paragraphs 10 and 14 to 19 of the election petition goes to show that the petitioner has pleaded all material facts and has specifically given the detailed particulars to highlight the irregularities committed during the counting of votes. All the dates and places where the irregularities were allegedly committed in the counting of votes and the manner thereof have been stated in the petition. Therefore, it cannot be said in the facts of this case that the above paragraphs of the election petition are vague or that these paragraphs are lacking in material particulars.

The election petition has been duly verified and properly signed by the petitioner. Verification made at the end of the election petition is also proper and in consonance with the procedure prescribed by law. Every page of the election petition and the annexures attached therewith have also signed by the petitioner. There is thus no departure from compliance of the provisions of Sections 83 and 87 of the Act. This issue is therefore, decided against the answering respondent.

ISSUE No.2

As per the provisions of Section 81 (3) of the Act, every election petition is required to be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. A perusal of the order sheets goes to show that notices were issued to all the 17 respondents mentioned in the petition. All the notices were accompanied by a copy of the election petition. All the notices were accompanied by a copy of the election petition. No other respondent except the answering respondent Vidya Devi has put in appearance in response thereto. Whether the copy of the election petition was attested by the petitioner or not is a question which could be raised by an individual respondent and on his own behalf, and not by the answering respondent on behalf of the other respondents. This objection is available to the answering respondent in respect of her own copy of the election petition received by her along with the notice, and only on her own behalf. It is not shown that the copy of the election petition or the annexures attached therewith, which were supplied to the respondent Vidya Devi, was not attested by the petitioner as required by law. I, therefore, see no departure of the compliance of the provisions of Sections 81 (3) and 83 of the Act by the petitioner. This issue is, therefore, decided against the answering respondent.

ISSUE No.3

"Whether the result of election of respondent No. 1 has been materially affected on the grounds mentioned in the election petition and the petitioner is entitled to be declared elected? OPP."

The allegations on the strength of which the petitioner has alleged that irregularities were committed in the counting of votes and undue favour shown to respondent Vidya Devi in that behalf, have already been noticed above. In order to prove this issue, the petitioner has examined eleven witnesses including himself as PW-3. Jagdish Chander Merita, Kanungo, District Election Office, District Sirsa produced on record form 20-A, Mark "A" relating to the election of Haryana Vidhan Sabha from 80-Darba Kalan Constituency in respect of the election held in April, 1996. He also produced on record an application Mark "B" submitted by the petitioner to the Returning Officer for stopping further counting of ballot papers and to arrange re-counting, and the order passed thereon by the Returning Officer. PW-2 N.N. Butolia, Section Officer in the office of the Election Commission of India, New Delhi stated that complaint Mark "C" through a fax message was received in the office of the Election Commission on 10.5.1996 and another complaint Mark "D" was received on 11.5.1996. May 12, 1996 was Sunday and ultimately, these complains were dealt with and final order thereon, was passed on 15.5.1996. This witness proved the order Exhibit PW2/1 passed on the complaints by the secretary to the Election Commission of India. In cross-examination, he showed ignorance about the time when complaint Mark "C" was received in the office of the Election Commission. PW-3 Paraladh Singh-petitioner while appearing as his own witness stated that he contested the election to the Haryana Vidhan Sabha from 80-Darba Kalan Assembly Constituency in April, 1996 on Haryana Vikas Party ticket. Major contestants were Vidya Devi and Dr. K.V. Singh from Samta Party and Congress Party respectively. He polled 36750 votes and respondent Vidya Devi polled 36944 votes. Counting of votes started on 8.5.1996 at 8 AM. There were eight tables in the counting hall, four for the Assembly seat and for the Lok Sabha seat, besides the table of the Returning Officer. The counting agents of all the candidates were at a distance of 3 to 4 feet from the counting staff and there was an iron net in between the counting staff and the agents of the candidates. The petitioner further stated that he was leading right from the first round of counting and till the completion of 21st round of counting he was leading by 1660 votes. Thereafter the returning Officer distributed the uncounted ballot papers for counting to the counting staff on seven tables. He stated that increase of counting tables from four to seven was objected to by him as he had counting agents for four tables only and he made application Exhibit PW3/1 on 10.5.1996 at 3.30 PM in that behalf. He stated that he sent fax message, copy Exhibit PW3/2, to the Election Commission of India and fax message Exhibit PW3/2 was sent by the General secretary of his party, Rajiv Jain. After the increase of counting tables from 4 to 7, 600 to 700 votes which had been cast in his favour, were wrongly placed in the bundles of respondent Vidya Devi and in the bundle of rejected votes by the counting staff, taking advantage of inadequate number of his counting agents. In the last four rounds 15750 votes were counted. In the 22nd round, about 70 votes duly cast in his favour were wrongly put in the bundle of Vidya Devi and counted in her favour. In the 23rd round, about 35 votes duly cast in his favour were rejected as invalid. In the 24th round, about 25 votes duly cast in his favour were put in the bundle of Vidya Devi and counted in her favour besides rejecting 9 valid votes cast in his favour. In the 25th round, about 90 votes validly cast in his favour were put in the bundle of Vidya Devi and counted in her favour.

Satnam Singh PW-4 stated that he was the counting agent of the petitioner at table No. 1. After the counting of 21st round was over, the counting was conducted on seven tables instead of four tables and after the counting of 22nd round started, the counting staff did not allow him to have a look on the ballot papers and they also observed that they should be given a free hand to concluded the counting as it started more than two days back. The witness further deposed that all the 18 candidates had four counting agents each in the counting hall. Ajit Singh PW5 stated that he was the counting agent of the petitioner on table 3. He further stated that after the completion of 21 rounds of counting, the counting was done on seven tables. Jagdish PW-6 stated that he was the counting agent of the petitioner on table No. 4. The petitioner also examined three independent candidates who had also contested the election in question, namely, Subhash, Kohar Singh and Ram Kumar, PWs 7, 8 and 10 respectively. He also examined Inder Singh who was the election agent of Kohar Singh, independent candidate, as PW-9 and Surinder who was the counting agent of Ram Kumar, Independent candidate, as PW-f1. All these witnesses stated that after the completion of 21st round of counting, the number of counting tables was raised from 4 to 7, the statements of these witnesses shall be discussed in the contest of other allegations to be noticed hereinafter.

On the other hand, respondent Vidya Devi examined herself as her own witness as RW-2 as she also examined, Jagdish Chand, Election Kanungo, Election Office, Sirsa as RW-1, Brij Lal RW-3, her counting agent on table No. 4, Arvind Kumar RW-4, her counting agent on table No. 3, Rajinder Kumar RW-5, the counting agent of Ram Murti candidate, Pawan Kumar RW-6, the election agent of Chanda Ram candidate, Babu Ram Goyal, Advocate RW-7, election agent Of Sushil Indora candidate, Ram Chander RW-8, the counting agent of Chanda Singh and LD. Merita, Advocate RW-9 her own election agent. All the private witnesses stated that counting of votes of the election in question was done on four tables and at no point of time, the number of counting tables were increased for counting the votes meant for Vidhan Sabha election. They specifically denied having any knowledge about the petitioner''s making any complaint against Irregularities being committed in the counting. All of them denied the suggestion that it was incorrect to say that the votes polled in favour of the petitioner were counted in favour of Vidya Devi respondent or that such votes were put in the bundle of rejected votes or were wrongly rejected as invalid.

After carefully scrutinising the evidence produced by the parties and hearing learned counsel for the parties, I am of the opinion that it has not been proved on record that any irregularity was committed in the counting of votes or any favour was shown to respondent Vidya Devi or any other candidate by the counting staff. A careful reading of the evidence produced by the petitioner reveals that the testimony of witnesses examined by him Is full of contradictions and discrepancies. The allegations levelled by the petitioner in the election petition especially to the manner of counting of votes after the conclusion of 21st round, have not been supported by the witnesses produced by him. Some of the witnesses produced by the petitioner are the counting agents of other candidates or the candidates themselves, who contested the election. These witnesses have tried to support the case of the petitioner but the statements made by them are of general nature and the allegations made in the election petition have not been supported specifically in the matter of wrong rejection of votes validly polled in favour of the election petitioner or that the votes polled in favour of the election petitioner were put in the bundle of the returned candidate and counted in her favour. Moreover, the statements of these witnesses cannot be relied upon as these witnesses were not expected to watch the interest of the petitioner but were expected to watch their own interest or that of their candidates.

One of the primary allegations of the petitioner regarding irregularities in the counting of votes and favouritism is that Dalip Singh Bishnoi, the Returning Officer is the close associate of Ch. Bhajan Lal and thus he showed undue favour to respondent Vidya Devi as Ch. Bhajan Lal did not want the petitioner to win. This allegation has been specifically denied by the answering respondent. Even otherwise, there is not even an iota of evidence to support this allegation. This allegation thus cannot be given any credence in the absence of proof or any other evidence.

As regards the question of increasing the number of counting tables as alleged in the petition, it may be noticed that the witnesses examined by the petitioner did depose in that behalf but this fact has been specifically denied by the answering respondent in her written statement. Even the witnesses examined by the respondent have specifically denied this fact. Now so far as the statements of the witnesses examined by the petitioner including the petitioner himself on this point are concerned, it has to be seen whether their sworn testimony corroborates the allegations and inspire confidence so as to come to the conclusion that the allegations are correct. The evidence produced in this behalf cannot lead to the conclusion that number of counting tables was increased from 4 to 7 during the counting of ballot papers from rounds 22 to 25. Even if it be assumed that number of tables was so increased, it cannot necessarily lead to an inference that irregularities were committed by the counting staff in the matter of counting of ballot papers. It may at the most be an irregularity and not an illegality which may give an occasion to the Court to set aside the election of the candidate on that ground. It has not even been named in the election petition as to who were the officials who had been put on duty by the Returning Officer for the purpose of counting of votes on the additional tables meant for counting the ballot papers relating to rounds 22 to 25. It is merely an allegation unsupported by any cogent and convincing evidence. This allegation seems to have been made as at that point of time, the counting of votes relating to Lok Sabha Parliamentary constituency had been completed. Some tables at that point of time became available and, therefore, this allegation has beep leveled against the Returning Officer but it remained unsubstantiated.

The allegations levelled by the petitioner especially relating to counting of ballot papers in rounds 22 to 25 have not been supported by him while appearing as his own witness. Same is the situation as regards the witnesses produced by him in support of the allegations contained in the election petition. The petitioner in his statement stated that he did not make any complaint in writing including fax message specifically mentioning that votes validly cast in his favour had been put in the bundle of Vidya Devi. According to him, he made a general complaint in writing to the effect that irregularities had been committed in the counting of votes. He further deposed that he did not make a written complaint including fax message to the effect that votes validly cast in his favour were wrongly rejected by the Returning Officer. The petitioner in his statement deposed that he was present in the counting hall when counting of votes of rounds 22 to 25 took place, but his statement stands contradicted by Satnam Singh PW-4, petitioner''s own witness who stated in his cross-examination that during the counting of votes of rounds 22 to 25, the petitioner was outside the gate of the counting hall. However, according to the statement of Jagdish PW-6, who was the counting agent of petitioner at table No. 4, the petitioner went out of the hall on four/five occasions during the course of counting of votes of rounds 22 to 25. These three different versions regarding presence of the petitioner in or outside the counting hall do reflect on the veracity of the statements of these witnesses. It has been specifically stated by the petitioner in his statement that information regarding rejection of votes and counting of votes validly cast in his favour in the kitty of the other candidate was given to him by his agents and he had no personal knowledge about that. In other words, it is only what the counting agents examined by the petitioner have stated about irregularities is to be taken note of. He further specifically stated that he could not tell regarding irregularities committed during the counting of votes from 22nd round onwards. He also stated that he could not identify as to what extent the illegalities were committed on each individual table. In the wake of this, the question regarding irregularities, if any, committed in the counting of votes rests upon the testimony of statements of other witnesses.

Other witnesses examined by the petitioner to prove the illegalities and irregularities, if any, committed during the counting are either the counting agents of the petitioner or independent candidates or their counting agents or election agents. Satnam Singh PW-4, who was the counting agent of the petitioner at table No. 1 stated that all the 18 candidates had four counting agents each in the counting hall, meaning thereby, according to this witness, besides the counting staff, candidates and the returning Officer, there were at least 72 more persons present in the counting hall whereas according to Ajit Singh PW-5, there were about 40 to 55 persons in the counting hall. As noticed already, according to the statement of Paraladh Singh, petitioner, he had no personal knowledge about the irregularities being committed in the counting and his allegations were based on the information supplied to him by his counting agents. According to the statement of Satnam Singh PW-4, he was telling the details of the counting to the petitioner upto the 21st round but thereafter he could not know anything about the counting and, therefore, gave no information to the election petitioner. The witness further stated that he only knew about what happened before the counting of 21 rounds was completed and did not know anything thereafter. This part of his statement goes to show that no information regarding illegalities or irregularities, if any, so far as the counting on table No. 1 is concerned, was given to the petitioner by this witness who was petitioner''s counting agent at table No. 1 because, as stated by him, he could not notice anything after the counting of 21st round was completed. There is no other evidence in respect of table No. 1. It is also not shown that any other agent was appointed on that table by the petitioners thereafter.

As far as the counting on table No. 2 is concerned, it is clear from the statement of the petitioner that he had deputed one Raj Pal as his counting agent on table No. 2, but this witness was not produced by the petitioner and has not been examined for the reasons best known to him. However, with a view to fill up this vacuum, the petitioner examined Surinder PW-11 who was the counting agent of Ram Kumar, an independent candidate. His statement does not help the petitioner much as a close reading thereof would go to show that his statement was based on the information that he over-heard from the people, because he specifically stated in his statement that he heard the people saying that the counting was not going on fairly and the counting staff was committing irregularities in the matter of counting. He has not uttered a word in his statement that he had informed the petitioner about any irregularity in the counting of votes either in respect of the petitioner, or to Ram Kumar of whose he was the counting agent. He has rather in his cross-examination specifically stated that he did not Inform the election petitioner that the votes cast in his favour were being put in another bundle. This witness even could not tell, whether the petitioner had deputed any counting agent on table No. 2 or not. His testimony, therefore, does not reflect about any irregularity in the counting of votes as far as the petitioner is concerned, as according to him, he had not supplied any information in that behalf to the petitioner. The petitioner could possibly have no information about the irregularities in the counting of votes on table No. 2 as he has not examined his counting agent who was deputed to have an eye on the counting on table No. 2.

As far as the counting at table No. 3 is concerned, the petitioner has examined his counting agent, Ajit Singh PW5 deputed on that table. His statement also does not inspire any confidence. It is the specific case of the petitioner that after the completing of 21st round of counting, the counting staff committed irregularities and showed undue favour to Vidya Devi respondent. This witness stated that about 250 votes which had been cast in favour of the petitioner were put in the bundle of Vidya Devi respondent. He further stated that on table No. 3 about 60 to 70 votes were put in the bundle of Vidya Devi and 250 votes that had been cast in favour of the petitioner and put in the bundle of Vidya Devi related to all the tables and not table No. 3 alone. He further stated that the figure of 60 to 65 votes as given by him related to counting of round No. 22 only. In the next breath this witness stated that he was outside the iron net and, therefore, could not see as to what was happening on the counting table. If this was so, how could he come to know about the illegalities and notice that the votes cast in favour of the petitioner were being put in the bundle of Vidya Devi respondent. Even otherwise, once this witness had been deputed by the petitioner as his counting agent on table No. 3 how could, he know about the number of votes polled in favour of the petitioner and counted in favour of Vidya Devi on other tables.

As far as the statement of Jagdish PW-6 is concerned, he stated that he was the counting agent of the petitioner at table No. 4. He stated that about 250 to 300 votes that had been cast in favour of the petitioner were put in the bundle of rejected votes whereas according to the statement of Ajit Singh PW-5, 250 votes that were polled in favour of the petitioner were put in the bundle of Vidya Devi respondent. It is thus not clear as to which version is correct as Ajit Singh PW-5 stated that these 250 votes were put in the bundle of Vidya Devi respondent whereas Jagdish PW-6 stated that these votes were put in the bundle of rejected votes. On the one hand this witness stated that the figure of 250 votes polled in favour of the petitioner and put in the bundle of rejected votes related to all the tables but in the next breath he stated that after the completion of 21st round, he was concentrating only on his table. Once that is so, how could he have the information about the number of votes which according to him had been polled in favour of the petitioner but were put in the bundle of the rejected votes on other tables. He can at the maximum be expected to know about the irregularities, if any, in the counting, regarding table No. 4 only, on which he was deputed by the petitioner as his counting agent. His statement thus cannot be relied upon to prove the illegalities, if any, in the counting of votes.

Subhash PW7 stated that he was a independent candidate. According to his statement, he had appointed only one counting agent. This part of his statement stands contradicted by Satnam Singh PW-4, who stated that all the 18 candidates had four counting agents each. This witness specifically stated that he was unable to tell as to what extent the irregularity was committed in the counting of votes at table No. 1 and similarly, he was also unable to tell anything in that behalf, regarding other tables also. This witness stated that he himself knew that about 250 votes polled in favour of the petitioner were put in the bundle of Vidya Devi. He has not disclosed the source of this information from where and whom he came to know about this. His statement is thus, not trustworthy, for he himself was a candidate for the election and he could not be expected to concentrate and watch the counting on all the tables and that too, during all the time, at least on 10.5.1996 on which date the irregularities are said to have been committed by the counting staff. His statement is also of no avail to the petitioner to prove this issue.

Kohar Singh another independent candidate for the said election appeared as PW-8. He also blew hot and cold. He in one breath stated that the counting agents could shake hands with each other but in the next breath he stated that they could not shake hands with the counting staff. This witness was not able to tell as to how many members of the counting staff were on duty on each table. He also could not tell as to how many persons were counting the votes after the tables were allegedly increased from 4 to 7. This witness further stated that he did not appoint any counting agent and this part of his statement stands contradicted by the statement of Satnam Singh PW-4 who had stated that each candidate had four counting agents. The witness further stated in clear terms that he could not say how many ballot papers of the petitioner were put in the bundle of Vidya Devi and that he did not know anything about rounds 23, 24 and 25. He also stated that about 200 to 250 invalid votes were put in the bundle of Samta Party candidate. This witness did not state as to on which table or tables, this all was going on and on what basis, he was telling that 200 to 250 invalid votes were put in the bundle of Samta Party candidate. Even otherwise, a single person cannot be expected to concentrate on all the four counting tables and notice the irregularity, if any, and that too, during all the time when the votes of rounds 22 to 25 were counted on 10.5.1996. No advantage thus can be had from his testimony, by the petitioner in support of his allegations.

Inder Singh, PW-9, stated that he was the election agent of Kohar Singh independent candidate. This witness belongs to the village of the petitioner. He seems to be interested in deposing in favour of the petitioner. In cross-examination he admitted that he came to the Court to give evidence with the petitioner and even stayed in the guest house with the petitioner. He stated in clear terms that he could not tell what irregularity took place on each table. Nothing can be elicited from his statement which may even suggest remotely" that any irregularity was committed in the counting of votes.

Ram Kumar PW-10 was another independent candidate for the election in question. His statement is also not specific qua a particular irregularity at a particular table. He stated that votes belonging to the petitioner were being mixed up in the bundle of votes of Vidya Devi and the number of such votes may be 250 to 300. But in cross-examination this witness could not tell the names of the counting agents whom he had deputed to watch the counting, except one Surinder. A person, who is not aware of the names of his counting agents who generally are the close associates of a candidate, cannot be expected to give any detail about other facts and all what he has stated in Court appears to have been so done on being tutored by the petitioner.

A close examination of the evidence produced by the petitioner would go to show that none of the witnesses examined by him has supported the allegation contained in the petition as to how many votes were wrongly rejected, or illegally counted in favour of respondent Vidya Devi or those polled in favour of the petitioner were wrongly put in the bundle of the rejected votes and on which table. It is only the petitioner alone who while appearing as his own witness tried to give details but he also could not give the number of votes correctly as mentioned in the election petition. His statement qua number of votes wrongly or illegally counted/rejected is at variance with the figures detailed by him in the election petition. The statements of the witnesses examined by the petitioner to support the allegations of irregularities as contained in the petition are contradictory on all vital aspects and the discrepancies in their statements as noticed above, lead to the conclusion that either they were not present in the counting hall at the relevant time or they were deposing falsely to support the petitioner.

It was alleged in the election petition that in the 24th round of counting, one Ghyanshyam Dass was put on duty on table No. 2, whose name neither figured in the names of the counting staff nor in the name of the reserve staff. Neither of the witnesses examined by the petitioner has uttered a word in that behalf when their statements were recorded in Court and this allegation has thus remained only an allegation and no note of it deserves to be taken to come to the conclusion that the allegation is correct.

As far as the question of making a complaint by the petitioner is concerned, the petitioner has alleged that he made a complaint about the irregularities being committed in the counting and thus prayed for stopping the counting, on 10.5.1996 at 3.30 p.m. The application was considered by the Returning Officer who rejected the same being without any merit by passing an order thereon the same day at 4 p.m. when by that time, even as per statements of petitioner''s own witnesses, the counting of the final round had concluded. The petitioner has been clamouring throughout in the petition and it has come in evidence also that irregularities were committed in the last four rounds i.e. 22 to 25 and as per petitioner''s own case, the counting of 22nd round started between 1.30 to 2 p.m. There is thus, no explanation whatsoever as to why, if the petitioner was aggrieved by any illegality or irregularity being committed in the counting, the complaint was not made when the counting for 22nd round or 23rd round was In progress. The making of the complaint at 3.30 p.m. appears to be an after-thought and this appears to have been done when the petitioner became sure that he was trailing in the election and was thus bound to lose the election.

As far as the fax message sent to the Election Commission are concerned, the petitioner initially sent a fax message, Mark "C" in which he besides complaining that the number of counting tables were increased, further stated that the counting staff was also changed with his consent. Another fax message was sent by Rajeev Jain, General Secretary of petitioner''s party. N.N. Butolia, Section Officer, Office of the Election Commission of India, PW-1 stated that both these messages were received in the office of the Election Commission. Mark "C" was received on 10.5.1996 whereas Mark "D" was received on 11.5.1996. Both the complaints were dealt with and final order thereon was passed on 15.5.1996. A copy of the order passed thereon is Exhibit PW2/1 on record which has been duly proved by this witness. It is clear from the order Exhibit PW2/1 that the complaints were ordered to be filed after observing that the election process was already over and no untoward incident had been reported by the Returning Officer of the District Returning Officer and, therefore, no action was called for thereon. There is thus no dereliction of duty on the part of the officials of the Election Commission of India in that behalf.

In view of the above, the petitioner has not been able to prove the allegations as set out in the election petition which may suggest that the result of the election was materially affected in any manner. The petitioner has not been able to prove any illegality or irregularity committed by the Returning Officer or the counting staff in the matter of counting as alleged in the election petition. This issue is, therefore, decided against the petitioner.

ISSUE No. 4:

While deciding issue No. 3, it has been found as a fact that the Returning Officer or the counting staff has not violated any rule, by passed the procedure or committed any irregularity or illegality in that behalf so as to arrive at a conclusion that the election of the returned candidate is liable to be set aside. In that view of the matter, this issue is decided against the petitioner.

ISSUE No. 5.

In view of the finding under issue No. 3, I see no ground or find any reasons which may entitle the petitioner to seek re-counting of votes as learned counsel for the petitioner by reference to any material could not show that the returned candidate or the counting staff committed any irregularity in the election or in the matter of counting of ballot papers, what to talk of a material irregularity. From the evidence produced on record it cannot be gathered that the election of the returned candidate is liable to be set aside. This issue is, therefore, decided against the petitioner.

ISSUE No. 6 (RELIEF)

In view of my findings on the above issues, the election petition fails and is dismissed. However, having regard to the facts and circumstances of the case, the parties are left to bear their own costs.