Raj Pal vs Nafe Singh

M.L. Singhal, J.—Raj Palpetitioner was a candidate at election 37 Bahadurgarh Assembly Constituency, besides Nafe Singhrespondent No. 1 and 18 others. Nominations filed by them were found in order. The polling to the 37 Bahadurgarh Assembly constituency took place on 27.4.1996. The results were announced on 10.5.1996. There were 177 polling booths in that constituency. In the election, the petitioner polled 26,657 votes while Nafe Singh respondent No. 1 polled 27,555 votes. Nafe Singhrespondent No. 1 was declared elected by the Returning Officer by a margin of 898 votes. The petitioner was a candidate put up by the Haryana Vikas party while respondent No. 1 was a candidate put up by Samta party. Shri Ram Nath Bishnoi, HCS, SDO (Civil), Bahadurgarh the Returning Officer for 37Bahadurgarh Assembly Constituency. He was quite close to respondent No. 1. Prior to respondent No. 1 was put up as candidate by the Samta Party at election to the 37Bahadurgarh Assembly Constituency, he had been Chairman of the Municipal committee, Bahadurgarh for two terms namely from 28.11.1989 to 29.9.1991 and from 4.11.1992 to 17.3.1994. Since respondent No. 1 was a local politician of Bahadurgarh Town and Shri Ram Nath Bishnoi was SDO (Civil), Bahadurgarh, they became close to each other and were on frequent visiting terms. Since respondent No. 1 had been Chairman of the Municipal Committee, Bahadurgarh twice, staff of Municipal Committee, Bahadurgarh was under his direct influence. Returning Officer vide order dated 30.4.1996 detailed many officers/officials out of staff of the Municipal Committee, Bahadurgarh on the election duty for counting votes at 37Bahadurgarh Assembly constituency. Respondent No. 1 had equation with the Returning Officer and he succeeded in getting appointed the officials of the Municipal Committee, Bahadurgarh as Counting Assistants. The counting of votes started at 8.00 AM on 8.5.1996 at Vaish Arya Kanya Mahavidyala, Bahadurgarh. There were six counting tables placed in a row from table No. 1 to table No. 6 for the counting of votes of 37Bahadurgarh Assembly Constituency. Opposite thereto, there were tables placed for the counting of the votes for Rohtak Parliamentary Constituency. The tables were put in wiremesh enclosures. The distance of the counting tables from the wiremesh was about 11/2 ft. The first bench placed outside the wiremesh for the Counting Agents was at a distance of about 11/2 feet. The second bench was again at a distance of 1 1/2 feet from the first bench and the 3rd bench was also at a distance of about 11/2 feet from the second bench. The width of each was about 1 foot. Thus, the distance between the counting table edge was about three feet and to the second bench about 51/2 feet and to the 3rd bench the distance was about 8 feet. There were 20 Counting Agents on each counting table because each of the candidates had appointed Counting Agents one each on all had the tables. One Shri Krishan Kumar appointed as Counting Agent by the petitioner for counting table No. 6 was not allowed entry inside the counting hall by the Returning Officer. Returning Officer had allowed the police within the wiremesh enclosures. The purpose of allowing the Armed Police in the wiremesh enclosures was to create awe and fear rather than to maintain law and order and discipline in the matter of counting. The Counting Agents of the petitioner were not able to see properly the seal mark on the ballot papers because of the distance and also because of the obstruction put by first row of the Counting Agents sitting on the first bench. The Counting Agents of the Petitioner were made to sit in the second row, the petitioner being a candidate of State Level party and the Counting Agents of respondent No. 1 were allowed to sit in the first row alleging that respondent No. 1 was a candidate of a National Party. There was continuous commotion and disturbance amongst the Counting Agents in order to watch the interest of their respective candidates. The Counting Agents were sometime standing and sometime sitting and some of the Counting Agents in order to purch them on the edges of the benches were falling also. The Counting Agents in the second row at times were being pushed behind. The police did not allow the Counting Agents to stand on the benches and the Counting Agents were not able to see the seal mark properly while sitting on the benches. The petitioner''s grievance was that the Counting Agents were not able to keep the necessary vigil over the Counting Staff and the Counting Process, in the matter of counting of votes. Out of the six counting tables, Returning Officer appointed Counting assistants on five counting tables out of the staff of the Municipal Committee, Bahadurgarh with view to cause maximum damage to the petitioner while doing wrong counting at the instance of respondent No. 1. The Returning Officer instead of checking the wrong counting, gave free hand to the counting staff in doing wrong counting, prejudicial to the interest of the petitioner. The petitioner was present at the time of counting, in the counting hall, except for short period when he had to go outside. He had appointed six Counting Agents on the counting tables and they had been issued their respective identity cards by the Returning Officer but Krishan Kumar was not allowed entry in the counting hall by the Returning Officer. In other words the counting of table No. 6 went unwatched by his Counting Agent and thus maximum damage was caused to him while counting on table No. 6. Petitioner raised objections during the counting and on his persistent demands the Returning Officer reduced the number of counting tables from six to five instead of allowing entry to said Krishan Kumar, who had been appointed by him as his Counting Agent for table No. 6. In the 14th round of counting, on the persistent demand of the petitioner, the counting tables were reduced from 6 to 5 but it was too late by then and by this time much damage had been caused to the petitioner. Respondent No. 1 in connivance with the Returning Officer got appointed Counting Staff out of the staff of the Municipal Committee, Bahadurgarh so that he could obtain undue advantage at the time of counting because the staff of the Municipal Committee, Bahadurgarh was under his influence. The petitioner has named the persons who were from the staff of Municipal Committee, Bahadurgarh, who had been put as Counting Assistants for those table for looking after the counting process on behalf of respondent No. 1. During round No. 4 of the counting on table No. 4, when Satvir Singh, Counting Assistant was doing the counting properly without showing any favour to respondent No. 1, the Returning Officer and respondent No. 1 could not tolerate it and Satvir Singh, Counting Assistant was abruptly replaced by Shri Om Parkash, Steno, Municipal Committee, Bahadurgarh, who was kept in the reserve staff. According to the petitioner the counting staff committed many serious irregularities in the counting of votes and the result of the election did not depict the actual votes which the respective candidates had polled. The counting had been totally bogus and a farce. The election result was materially affected to the detriment of the petitioner. The petitioner has alluded to a number of instances which according to him suggest affirmatively that there had been lot of bungling in the process of counting which tilted the balance against him and in favour of respondent No. 1. A large number of votes namely 3652 had been rejected out of which as per the rough estimate/calculation given by the Counting Agents, nearly 1256 votes of the petitioner had been wrongfully rejected on illegal grounds, one of which was that there was double impression on the ballot papers.

In fact, there was only one impression in front of the name of the petitioner and another impression in the reverse direction had come to appear on the folding of the ballot paper. Many votes polled by the petitioner had been rejected because of very small markings either on one corner or on the side of the ballot papers from the ink left on the thumb of the voters, while the voter held the ballot papers in the same hand, the thumb of which was used for thumb marking at the time of issue of ballot papers. Courting Agents of the petitioner were not allowed to sit near the counting tables, they could not note down the numbers of wrongly rejected ballot papers/votes cast in favour of the petitioner. Petitioner and his Counting Agents raised objections but the Returning Officer did not pay any heed to their grievance. Not only he and his counting Agents raised objection, some other contesting candidates and their Counting Agents also objected to the wrongful rejection of the valid votes cast in favour of their respective candidates. The Returning Officer completely ignored their demand as he was determined to help the returned candidate. Likewise many valid votes of the petitioner were rejected on the ground that the mark was although in front of the name of the petitioner but was touching the line of the column. None of the above said grounds of rejection of the votes polled by him (petitioner) was tenable and the votes polled by him had been unlawfully and unjustly rejected on grounds which were untenable. All these were valid votes. They should not have been rejected. They should have been counted in the kitty of the petitioner. 1256 votes which he had polled but which had not been counted in his kitty materially affected the result of the election. Similarly, if the ballot paper which had been thumb marked by the voter against his election symbol had been counted in his kitty that would have materially affected the election result so far as he is concerned. Since the Counting Staff and the Returning Officer were disposed sympathetically towards respondent No. 1, many invalid votes of respondent No. 1 were wrongfully accepted. As many as 328 invalid votes polled by respondent No. 1 were wrongfully accepted as per the rough estimate/calculation given by the Counting Agents of the petitioner. As per the rough estimate/calculation of the petitioner also, the acceptance of the invalid votes of respondent No. 1 affected materially the election result of the petitioner. From the very beginning, counting was not being done properly as the Counting Assistants put the votes in their lap instead of putting them on the top of the counting tables for counting as well as for the purpose of making bundles. At the time when after counting, the votes were made into bundles, Counting Agents put more votes of the petitioner while making bundles of allegedly 50 votes each. On the persistent demand and objection raised by the Counting Agents of the Petitioner, only a few bundles were rechecked and from each such bundle extra votes were actually found. Receiving these complaints of serious irregularities in counting from his Counting Agents, the petitioner raised objections and requested the Returning Officer for rechecking of all the remaining bundles but the Returning Officer refused to get the bundles of the petitioner rechecked. The position was that most of the bundles of the petitioner were containing more than 50 votes each. As per the rough estimate/calculation of the Counting Agents of the petitioner at least 1219 votes of the petitioner had been put extra in his bundle, which remained unaccounted so far as his kitty was concerned and in this manner, election result of the petitioner was materially affected. Election result was materially affected because of the putting of votes less than 50 while making the bundles of respondent No. 1. On the objection raised by the Counting Agents of the petitioner, to this blatant mischief/irregularity being committed in the process of counting only a few bundles of respondent No. 1 were rechecked. In each such rechecked bundles, less than 50 votes were found although the bundles had been shown containing 50 votes each. In this manner, in the kitty of respondent No. 1577 more votes had been counted, which should not have been taken into account in his kitty. If the bundles of respondent No. 1 are reexamined, they will be found to contain less than 50 votes each. When he requested the Returning Officer for the rechecking of the remaining bundles of the petitioner, the Returning Officer refused to do so. This glaring irregularity in the counting has rendered the election result topsy turvy. The postal ballots received were 136 but the Returning Officer had shown only 69 ballot papers as accounted for in Form No. 20. Out of these 69 ballot papers, petitioner got 42 votes and the respondent No. 1 got only 7 votes and the rest of the votes went to the other candidates. Remaining 67 postal ballot papers were not accounted for at all. Since the Returning Officer had not counted all the 136 postal ballot papers as is clear from Form No. 20, the remaining 67 votes of postal ballots had been wrongly counted in favour of respondent No. 1 as these had not been shown even in the column of rejected votes. The wrongful rejection of valid votes polled in favour of the petitioner and the wrongful reception of void votes and counting of the same in favour of the returned candidate has materially affected the result of the election.

The staff and the Returning Officer committed serious interpolations, cuttings and overwritings in Form 16A and 16B and check memo Form 20 while preparing the result. On page 1 of Form 20, total votes received at all the polling booths were shown as 85,200. On the very next page i.e. page No. 2 of Form 20, the figure of total valid and rejected votes in the last column has been shown as 85,224/. This figure of 85,224 was after the addition of 69 postal ballot papers and by adding these 69 this figure should have been 85,269. This material discrepancy has not been reconciled. The total votes received from booth No. 82 was 300 which was interpolated into 360. From booth No. 97, total votes received were 323 but in Form No. 20 this figure was interpolated into 523. Similarly, at booth No. 107, total votes polled were 289 which were interpolated into 482. These interpolations were made by the staff and the Returning Officer with a view to help respondent No. 1 at the cost of the petitioner. The total number of votes shown to have been received from all the 177 polling booths at page No. 1 of Form No. 20 are as 19550+20211+18866+19579+6994= 85,200. These figures are from five columns in which all the polling booths had been divided on page 1 of Form 20. This figure of 85,200 was earlier as 19497+20158+18462+19579+6994= 84,696. Since he was not satisfied with the process of counting, which was tilting the balance in favour of respondent No. 1, he moved an application for recount on 9.5.1996 at 11.00 P.M., when the result had not been declared. It may be mentioned here that the result was declared on 10.5.1996. The Returning Officer rejected his prayer for recount of votes without assigning any reason and returned the application in original to him with an endorsement that the result had not been announced till the receipt of the application for "re count". He should have allowed recount in view of Rule 63 of the Conduct of Elections Rules, 1961, particularly when he and his Counting Agents had been raising their grievance time and again regarding the rejection of votes polled by him which were valid and which should have been counted in his kitty and also the wrongful bundling of votes. He applied for getting the copies of forms 16A, 16B and check memos. Election officials did not supply the copies of forms 16A, 16B and the check memos saying that these had been deposited in the bouble lock. Nonsupply of copies of forms 16A, 16B and the check memos shows that the election officials had been trying to conceal and suppress the serious irregularities and illegalities committed by them during the counting because of their sympathetic attitude towards respondent No. 1 and bias/prejudice against the petitioner.

Raj Palpetitioner challenged the election of Nafe Singhrespondent No. 1 (returned candidate) through this election petition filed under Section 80 read with Sections 100 and 101 of the Representation of People Act, 1951 read with Conduct of Election Rules, 1961 and has prayed that the election of respondent No. 1 to Haryana legislative Assembly from 37Bahadurgarh Assembly constituency held in April/May, 1996 be declared void and he (petitioner) be declared elected at that election. Petitioner claims the setting aside of the election of respondent No. 1 to Haryana Legislative Assembly from the said constituency on grounds that there had been material irregularities in the counting of votes polled in that election and the material irregularities materially affected the result of the election and if there had been fair and just counting of votes, he would have been declared victorious having polled more votes than the votes polled by respondent No. 1. It may be mentioned here that there was close contest only between the petitioner and respondent No. 1 and so far as other candidates are concerned, they were far from the victory mark.

In nutshell, the petitioner has prayed for the setting aside of the election of respondent No. 1 and declaration that he is elected in the election on the sole ground namely that there had been bungling in the process of counting of votes and if the counting of votes had been fair and just, he would have emerged victorious having polled more votes visavis respondent No. 1 who had polled less votes.

Respondent No. 1 contested the election petition. It was denied that he was close to the Returning Officer or that they were on frequent visiting terms with each other. Shri Ram Nath Bishnoi was not SDO (Civil), Bahadurgarh during the period when he was Chairman of the Municipal Committee, Bahadurgarh. When the election took place, Congress Party was in power in the State and while he (respondent No. 1) belonged to opposition. Returning Officer had appointed various employees on election duty on his own. While appointing various employees on election duty, he was not shadowed by respondent No. 1. It was denied that the staff of the Municipal Committee, Bahadurgarh was under his influence. He was not Chairman of the Municipal Committee, Bahadurgarh at the time of election. Each and every Counting Agent was sitting or standing near the wiremesh enclosures. Counting Agents of all candidates were present at the time of counting. It was denied that Krishan Kumar, Counting Agent of the petitioner put up on duty at counting table No. 6 was not allowed entry in the countinghall by the Returning Officer. In fact, he was quite present on duty at table Nos. 4 and 6. It was denied that the police was put on duty in the counting hall with a view to create awe and fear. The police was put up on duty in the counting hall with a view to ensure security of ballot boxes, ballot papers, counting staff, counting agents of various parties and other things. No complaint whatever was made regarding the arrangement and the alleged obstruction to the Returning Officer or any other authority. It was denied that any valid votes polled in favour of the petitioner were improperly rejected. Every doubtful vote from each counting table which was required to be rejected was sent to the table on which the Returning Candidate (officer ?) alongwith the candidates or their Election Agents were sitting. The doubtful votes were shown to each candidate/election agent and the Returning Officer either rejected the doubtful votes or accepted them in the presence of the candidates. It was denied that the petitioner could not note down the serial number of those votes, when doubtful votes were accepted or rejected in his presence by the Returning Officer. No objection was raised by the petitioner or his counting/election agent. No vote of the petitioner and other candidates was rejected illegally what to talk of 1256 votes. It was also denied that while making bundles more than 50 votes were put in the bundles of the petitioner and while counting only 50 votes of each bundle were taken into account. It was denied that in the bundles of respondent No. 1 less than 50 votes were put but 50 votes were counted in each bundle. It was denied that any valid votes polled by the petitioner were rejected where there was no double thumb impression. No complaint/request was made to the Returning Officer for the rechecking of the bundles. It was denied that the Returning Officer did not count all the postal ballot papers. Remaining 55 ballot papers were justifiably rejected while 69 postal ballot papers were validly counted in favour of various candidates. It was denied that there was any interpolation committed in From 20 or Forms 16A and 16B while entering votes polled. It was urged that no case for recount of votes has been made out by the petitioner. On vague and insufficient grounds, the petitioner could not claim recount of votes.

In this election petition, since the petitioner has challenged the election of respondent No. 1 to the Haryana Vidhan Sabha on the sole ground that there has been no fair counting of votes, there should be recount of votes and the recount of votes will demonstrate whether the electorate wanted Raj Pal petitioner to be their representative or they wanted Nafe Singhrespondent to be their representative in the Haryana Vidhan Sabha and therefore he had prayed for an order for recount of votes as recount of votes will be decisive of the election petition.

Question, that arises for the consideration of this Court is "Whether the prayer of the petitioner made under Sections 100(1)(d)(iii), (iv) and 101 and of the Representation of the People Act, 1951 read with Section 151 of the Code of Civil Procedure for recount of votes be or be not allowed ?

Section 100 of the Representation of the People Act, 1951 lays down the grounds for declaring election to be void. It says that subject to the provisions of Subsection (2) if (the High Court) is of the opinion;

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act for the Government of Union Territories Act, 1963 (20 of 1963); or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected

(i) by the improper acceptance of any nomination, or

(ii) by any corrupt practice committed in the interest of the returned candidate (by an agent other than his election agent), or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any noncompliance with the provisions of the Constitution or this Act or of any rules or orders made under this Act,

(the High Court) shall declare the election of the returned candidate to be void".

Section 101 of the Act lays down as follows :

"Grounds for which a candidate other than the returned candidate may be declared to have been elected

If any person who has lodged a petition, has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the (the High Court) is of opinion

(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or

(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes;

(the High Court) shall, after declaring the election of the returned candidate to the void declare the petitioner or such other candidate, as the case may be, to have been duly elected".

Rule 56(3), (4) and (7) of the Conduct of Election Rules, 1961 lay down as under :

56 (Counting of Votes)

(3) Before rejecting any ballot paper under subrule (2), the returning officer shall allow each counting agent present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper.

(4) The returning officer shall endorse on every ballot paper which he rejects the word "Rejected" and the grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp and shall initial such endorsement.

(7) After the counting of all ballot papers contained in all the ballot boxes used at a polling station has been completed

(a) the counting supervisor shall fill in and sigh Part IIResult of Counting, in Form 16, which shall also be signed by the returning officer; and

(b) the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars."

Rule 63(1), (2) and (3) of the Conduct of Election Rules, 1961 lay down as under :

"63. Recount of votes

(1) After the completion of the counting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by candidate and announce the same.

(2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agent may apply in writing to the returning officer to recount the votes either wholly or in part stating the grounds on which he demands such recount.

(3) On such an application being made, the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable."

Section 97 of the Representation of the People Act, 1951 lays down as follows :

"97. Recrimination when seat claimed

(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election :

Provided that the returned candidate or such other party, as aforesaid unless he has, within fourteen days from the date of (commencement of the trial) given notice to (the High Court) of his intention to do so and has also given the security and the further security referred to in Sections 117 and 118 respectively.

(2) Every notice referred to in Subsection (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner".

It is thus clear that the election of a returned candidate can be set aside on any of the grounds specified in Section 100 of the Act, one of which is that, the result of the election has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any noncompliance with the provisions of the Constitution or this Act or any rules or orders made under the Act. The scope of enquiry in a petition filed for setting aside of election (simpliciter) on any of the grounds specified in Section 100(1)(d)(iii) and (iv) is limited to the determination of issue whether any vote has been improperly received in favour of the returned candidate or any vote has been improperly reused or rejected in regard to any other candidate or there has been noncompliance of the provisions of the Constitution or the Act, or the Rules or orders made under the Act and any one of these factors has materially affected the election of the returned candidate.

In this election petition, the election petitioner has made twofold prayer : (1) that the election of the returned candidate i.e. respondent No. 1 be declared void, and (2) that he (election petitioner) be declared to have been duly elected, if as a result of recount of votes, he is found to have polled more valid votes than those polled by the returned candidate.

Nafe Singhreturned candidate in his written statement has defended his own election to the Haryana Legislative Assembly from 37Bahadurgarh Assembly Constituency. He has not pleaded anything that in case his election to the Haryana Legislative Assembly is set aside, the petitioner is not entitled to be declared elected as his election was also materially affected. Returned candidate has not recriminated his election to the Haryana Legislative Assembly.

Rule 56(3) casts a mandatory duty on the returning officer to give a reasonable opportunity of inspection to the counting agents before rejecting any ballot paper under Rule 56(2). On each rejected ballot paper, he has to record the word "Rejected" and the ground of rejection in abbriviated form. Rule 56(7) lays down the after the counting of all ballot papers contained in ballot boxed used at a polling station has been completed, the Counting Supervisor shall fill in and sign PartIIRules of Counting in Form 16. The same is also required to be signed by the Returning Officer who is further required to make entries in a result sheet in Form20 and announce the particulars.

Rule 63 enjoins a duty on the Returning Officer to record in the result sheet in Form20 the total number of votes polled by each candidate and announce the same. After this, a candidate can apply in writing to the Returning Officer to recount the votes either wholly or in part by stating the grounds on which he demands such recount. Subrule (3) of Rule 63 requires adjudication of such application by the Returning Officer who may allow the application in whole or in part or may reject it in toto if he finds it to be frivolous or unreasonable. Rule 63(4) imposes a duty on the Returning Officer to render his decision under Rule 63(3) in writing and record reasons therefor. Subrule (5) of Rule 63 lays down the procedure for recount and Subrule (6) thereof provides that no application for recount shall be entertained after the total number of votes polled by each candidate had been announced under Subrule (1) or Subrule (5). This is subject to the condition that before any step is taken under Subrule (6), the candidate and election agents have been given a reasonable opportunity to exercise the right conferred by Subrule (2).

Learned counsel for the petitioner submitted that the petitioner has made out a case for recount in the election petition and has substantiated his claim to recount by evidence, recount should be ordered. In support of this submission, he submitted that the returned candidate had been President of the Municipal Committee, Bahadurgarh and he is a local politician of Bahadurgarh while Sh. Ram Nath Bishnoi SDO (Civil), Bahadurgarh who was Returning Officer at this election was very close to him and they had been on frequent visiting terms with each other. Shri Ram Nath Bishnoi put the Staff of Municipal Committee, Bahadurgarh on election duty for counting of votes and he did so, so that the returned candidate was benefited in the counting of votes by them. For claiming recount of votes, he drew my attention to various paragraphs of the election petition, as for instance para 12(a) to (f), which read as under :

"12. That because of the above said material facts the counting staff had committed very many serious irregularities in the counting of votes and the result of the election does not depict the actual votes which the respective candidates have secured. In fact, the counting has been totally bogus and a farce. Because of the above said submission, election result of the petitioner has been materially affected. The counting staff had committed the following serious irregularities, under the directions of Returning Officer and at the instance of Respondent No. 1, during the process of counting of votes.

(a) That large number of votes namely 3652 have been rejected out of which as per the rough estimate/calculation given by the counting agents, nearly 1256 votes of the petitioner has been wrongfully rejected on illegal grounds amongst which one of the grounds was double impression. In fact, there is only one impression in front of the name of the petitioner, but another impression in the reverse direction has come on folding of the ballot papers. Many votes of the petitioner have been rejected because of very small markings either on one corner or the side of the ballot papers from the ink left on the thumb of the voters, while the voter held the ballot papers in the same hand, the thumb of which was used for thumb marking at the time of issue of ballot papers. Since the Counting Agents of the petitioner were not allowed to sit near the counting tables and as such, they could not note down the numbers of wrongly rejected ballot papers/votes cast in favour of the petitioner. Since they were handicapped in doing so, they alongwith the petitioner, raised objections but the Returning Officer did not pay any heed to their grievance. Not only the petitioner and his Counting Agents, some other contesting candidates and their Counting Agents had also objected regarding the wrongful rejection of valid votes case in favour of their candidates but the Returning Officer completely ignored their demands as he was determined to help the returned candidate.

(b) Likewise many valid votes of the petitioner were rejected on the ground that the mark was although in front of the name of the petitioner but was touching the line or was slightly below or above the line of the column. None of the above said grounds of rejection was available and the above said votes of the petitioner have been wrongfully rejected on nonexisting grounds. All these votes were valid votes and ought to have been counted in favour of the petitioner. The wrongful rejection of 1256 valid votes cast in favour of the petitioner has materially affected the election result of the petitioner.

(c) That since the counting staff and the Returning Officer were having sympathetic attitude towards Respondent No. 1, many invalid votes of Respondent No. 1 were wrongfully accepted. As many as 328 invalid votes of Respondent No. 1 were wrongfully accepted as per the rough estimates/calculation given by the counting agents of the petitioner. As per the rough estimates/calculations of the petitioner also the above said invalid votes of Respondent No. 1 had been wrongfully accepted, thereby materially affecting the election result of the petitioner.

(d) That from the very beginning, counting was not being done properly as the Counting Officer put the votes in their lap instead of putting the same on the top of the counting table for counting as well as for the purpose of making bundles. The Counting Officers would put extra votes of the petitioner while making bundles of allegedly 50 votes each. On the persistent demand and objections raised by the counting agents of the petitioner, only a few bundles were rechecked and from every such rechecked bundle extra votes were actually found. Receiving these complaints of serious irregularities in counting from his counting agents, the petitioner raised objections and requested the Returning Officer for rechecking of all the remaining bundles but the Returning Officer refused to get the bundles of the petitioner re checked. Now the position is that most of the bundles of the petitioner are containing more than 50 votes each. As per the rough estimate/calculation of the Counting Agents of the petitioner at least 1219 valid votes of the petitioner have been put extra in his bundles and the same have not been counted in favour of the petitioner. As per the rough estimates/calculations of the petitioner, also the above said number of extra votes have been put into the bundles of the petitioner thereby materially affecting the election result of the petitioner.

(e) That the Counting Staff, under the instructions of the Returning Officer and at the instance of Respondent No. 1 had put less votes than 50 while making the bundles of Respondent No. 1. When the counting agents of the petitioner raised repeated objections about it, only a few bundles of Respondent No. 1 were rechecked and as a matter of fact less votes than 50 were found in each such rechecked bundle although the bundles have been shown containing 50 votes each. In this way, at least 577 less votes have been put in the bundles of Respondent No. 1 and these votes have been wrongly counted in his favour. If the bundles of respondent No. 1 are reexamined these will be found containing less than 50 in each bundle. When petitioner requested the Returning Officer for rechecking of the remaining bundles of Respondent No. 1, the Returning Officer refused to do so and this glaring illegality in the counting has materially affected the election result of the petitioner.

(f) That the postal ballots received were 136 but the Returning Officer has shown only 69 ballot papers as counted in Form No. 20. Out of these 69 ballot papers, petitioner has got 42 votes and Respondent No. 1 has got only 7 votes and the remaining votes have gone to other candidates. The result of 69 postal ballots shows that majority of votes out of the remaining unaccounted 67 postal ballots were in favour of the petitioner. Since Returning Officer has not counted all the 136 postal ballots as it is clear from Form 20, the remaining 67 votes of postal ballots have been wrongly counted in favour of respondent No. 1 as these have not been shown even in the column of rejected votes. The above mentioned facts and circumstances got to establish beyond any shadow of doubt that the statutory provisions have not been followed while doing counting because of which it could not be said that the counting was fair and free. The wrongful rejection of the valid votes polled in favour of the petitioner and wrongful reception of void votes and counting of the same in favour of returned candidate has materially affected the result of the election".

It was submitted by the counsel for the election petitioner that the election petitioner has been able to make out a prima facie case for recount in his favour. In support of this submission he drew my attention to the statement of Raj Palelection petitioner (PW3). Raj Palelection petitioner while appearing as PW3 stated that as Nafe Singhreturned candidate was wielding considerable clout in local politics and also he had been President of the Municipal Committee, Bahadurgarh twice over, he had close association with Shri Ram Nath Bishnoi, SubDivisional Magistrate, Bahadurgarh. Shri Ram Nath Bishnoi and Shri Nafe Singh (returned candidate) were also on visiting terms with each other. Some of the votes which were valid and polled in his (petitioner''s) favour were rejected. One of the grounds of the rejection of the valid votes polled in his favour was that against his name there was double impression and the other ground of rejection was that ink went to the reverse side of the ballot paper and the third ground of rejection was that the stamp touched the upper and lower line above or below the name of the candidate and the fourth ground of rejection was appearance of small markings on ballot papers. In this manner, about 3650 votes were declared invalid although they were valid and polled in his favour. There was no valid or just reason for the counting staff and the Returning Officer to reject the votes and declare them invalid, although they were quite valid and polled in his favour. On the other hand, there were about 320 such votes as were invalid but they had been improperly declared valid and counted in favour of the returned candidate. While preparing the bundles of 50 valid papers each, the extra votes were being put in bundles and in this manner, the votes put in bundles was either 55 or more and not necessarily 50. On his insistence and persistence with this objection, some of the bundles were rechecked and they were found to contain 55 votes or more. Bundles checked were four or five. In this manner about 1220 votes extra were put in the bundles which went off the counting mark. In the bundles meant for the returned candidate less than 50 votes were put. He as well as his Counting Agents raised objection, 2/3 bundles relating to the votes of the returned candidate were checked and they were found to contain either 45 or 44 votes. In this manner there was undue gain to the returned candidate to the extent of about 570 votes. On account of these irregularities and illegalities, the election result was materially affected inasmuch as the losing candidate was was declared victorious while the winning candidate was declared defeated. Similarly, ballot papers received through post (postal ballot papers) were 136 but only 69 valid postal ballot papers were counted. Later on 55 rejected postal ballot papers were added.

Raj Palelection petitioner has given threadbare the various events for making out a case for recount in the election petition and then when he appeared in the Court.

In Ram Sewak Yadav v. Hussain Kamil Kidwai and others, A.I.R. 1964 S.C. 1249, the Hon''ble Supreme observed that an order for inspection may not be granted as a matter of course, having regard to the insistence upon the secrecy of the ballot papers. The Court would be justified in granting an order for inspection provided two conditions are fulfilled :

(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case, and

(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.

In Jitendra Bahadur Singh v. Krishna Behari and others, A.I.R. 1970 S.C. 276, the Hon''ble Supreme Court observed that the basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers, are : (1) the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case, and (2) the tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition. If an election petitioner in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts when the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the unsuccessful candidate cannot afford the necessary basis. Similarly, when the petitioner does does not state in the election petition that any of the counting agents appointed by the unsuccessful candidate or his election agent in accordance with the rules had been refused admission to the place of counting, mere allegation that returning officer did not permit enough number of counting agents to be appointed is an extremely vague allegation. Under Section 47 of the Representation of the People Act, 1951, a contesting candidate or his election agent may appoint in the prescribed manner one or more persons but not exceeding such number as may be prescribed by the rules, to be present as his counting agent or agents at the counting of votes and when any such appointment is made, notice of the appointment shall be given in the prescribed manner to the Returning Officer. Rules framed under that Act prescribe the number of counting agents that a candidate may appoint. The form of the notice required to be given under Section 47 of the Act is given in the rules. The appointment of the counting agents is to be made in the prescribed form in duplicate, one copy of which is to be forwarded to the returning officer while the other copy should be made over to the counting agents. Rules also provide that no counting agent shall be admitted into the place fixed for counting unless he was delivered to the returning officer the second copy of the instrument of his appointment after duly completing and signing the declaration contained therein. Hence, the mere allegation that the returning officer did not permit enough number of counting agents to be appointed cannot afford the necessary basis.

Similarly, as to the rejection of a vote polled in favour of the unsuccessful candidate, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore, it is quite easy for them to note down the serial number of the concerned ballot papers. Therefore, if the election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections; the material facts required to be stated, are not satisfied and hence scrutiny of ballot papers should not be ordered.

In S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and others, A.I.R. 1980 S.C. 1362 the Hon''ble Supreme Court observed that Section 94 of the Representation of People Act, 1951 cannot be interpreted or examined in isolation. Its scope, amibit and underlying object must be ascertained in the context of the Act in which it finds its place, viz., the Representation of the People Act, 1951 and further in the context of the fact that this Act itself was enacted in exercise of power conferred by the articles in Part XV titled "Election" in the Constitution. The Act has to be interpreted in a way that helps achieve the Constitutional goal. The trust reposed by the Constitution in voter is that he will act as a responsible citizen choosing his masters for governing the country for the period prescribed by it. Any interpretation of Section 94 must essentially subserve the purpose for which it is enacted. The interpretative process must advance the basic postulate of free and fair election for setting up democratic institution and not retard it, Section 94 cannot be interpreted divorced from the constitutional values enshrined in the Constitution.

Section 94 is cast in negative language. The important words are "shall be required". The word ''required'' has an inbuilt element of compulsion. When it is said that no witness shall be required to state for whom he has voted at an election, on a pure grammatical construction uninhibited by any other consideration it would mean that the witness cannot be compelled against his will to disclose how he voted or for whom he has voted. The combined effect of Section 87(2) read with Section 95 of the Act, and omitting Section 94 for the time being, would be that if a witness in an election petition is questioned as to for whom he voted he would be under an obligation to answer that question. The principle of secrecy of ballot necessitated a specific provision excusing the witness from answering such a question which he would be under an obligation to answer under Section 132 of the Evidence Act or Section 95(1) of the Act. Section 94 precedes Section 95 which obliges a witness to answer all questions relevant to the enquiry in an election petition even on the pain of selfincrimination. But for Section 94, the witness could not have avoided answering the question put to him as to for whom he voted.

Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair election. A voter has to be statutorily assured that he would not be compelled to disclose by any authority as to for whom he voted so that a voter may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips. To that extent Section 94 of the Act carves out an exception to Section 132 of the Evidence Act and Section 95 of the Act. Secrecy of ballot can be appropriately styled as a postulate of constitutional democracy. This postulate of constitutional democracy tests on public policy.

If secrecy of ballot instead of ensuring free and fair election is used to defeat the very public purpose for which it is enacted, to suppress a wrong coming to light and to protect a fraud on the election process of even to defend a crime, viz., forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of free and fair elections. Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz, purity of election. They can coexist but where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play.

In Km. Shradha Devi v. Krishna Chandra Pant and others, A.I.R. 1982 S.C. 1569 the Hon''ble Supreme Court observed that free and fair election being the fountain source of Parliamentary democracy attempt of the Returning Officer and the Court should be not to chart the easy course of rejecting ballot papers as invalid under the slightest pretext but serious attempt should be made before rejecting ballot papers as invalid to ascertain, if possible, whether the elector has cast his vote with sufficient clarity revealing his intendment.

In Arun Kumar Bose v. Mohd. Furkan Ansari, A.I.R. 1983 S.C. 1311 the Hon''ble Supreme Court observed that "the petition must contain material fact on which the petitioner relies and the fullest possible particulars should be given.

Where only particulars of ballot papers not shown as they were not available during counting, no defect could be found with it when the pleadings had set out the material facts. Before inspection is allowed the allegations made against the elected candidate must be clear and specified and must be supported by adequate statement of material facts. Secrecy of ballot is sacrosanct and should not be allowed to be violated by frivolous, vague and indefinite allegations. The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount.

The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving enquiry with a view to fish out materials for declaring the election to be void. Only on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount and not for the purpose of fishing out materials."

Learned counsel for the electionpetitioner submitted that the petitioner has furnished adequate materials calling for recount and if recount is ordered that will bring to the fore the will of the electorate. It was submitted that if recount is ordered that will do justice between the parties.

Learned counsel for the respondentreturned candidate on the other hand submitted that recount cannot be ordered, on the basis of vague allegations. It was submitted that the secrecy of ballot which is sacrosanct should not be allowed to be violated on frivolous, vague and indefinite allegations. Before an order for inspection of ballot papers can be made, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statement of material facts. The Court must be prima face satisfied on the materi8al produced before the Court regarding the truth of the allegations made for recount. Court must come to the conclusion that in order to grant the prayer for inspection, it is necessary and imperative to do dull justice between the parties. In order to support his contention, learned counsel for the respondentreturned candidate relies on A. Younus Kunju v. R.S. Unni, 1989 S.C. & F.B. Election Cases 96, Beliram Bhalaik v. Jai Behari Lal, A.I.R 1975 S.C. 283 and Suresh Prasad Yadav v. Jai Parkash Mishra, A.I.R. 1975 S.C. 376.

In A. Younus Kunju v. R.S. Unni, 1989 S.C. & F.B. Election Cases 96 the Hon''ble Supreme Court observed that recount should not be ordered if no foundation has been laid for the prayer in the election petition.

In Beliram Bhalaik v. Jai Behari Lal, A.I.R. 1975 S.C. 283, the Hon''ble Supreme Court observed that "since an order for a recount touches upon the secrecy of the ballot, it should not be made lightly or as a matter of course. Although no cast iron rule of universal application can be or has been laid down, yet, from a beadroll of the decisions this Court, two broad guidelines are discernible, that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where :

(i) all the material facts on which the allegations of irregularity, or illegality, or illegality in counting are founded, are pleaded adequately in the election petition, and

(ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties."

In Satyanarain Dudhani v. Uday Kumar Singh, A.I.R. 1993 S.C. 397 the Hon''ble Supreme Court observed 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 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.

Thus in the instant case only threeline objection application was filed before the Returning Officer. No objection whatsoever was raised during the counting and no irregularity or illegality was brought to the notice of the Returning Officer. Even the material in the election petition, has been pleaded with the object of having a fishing enquiry and it did not inspire confidence. A cryptic application claiming recount was made by the contestant before the Returning Officer. No details of any kind was moved by the petitioner. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the Returning Officer. 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."

It is thus clear that recount will not be granted as a matter of right but only on the basis of evidence of good ground for believing that there has been misconduct in the counting. It has to be decided in each case whether a prima facie case has been made out for ordering inspection. In order to seek an order of recount, the election petitioner has to place material or make out a prima facie case on the threshold and before an order of recount is made, demand of defeated candidate for recount of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in democracy and unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence that there existed a prima facie case, the Tribunal or Court would not be justified in directing recount.

In this, thus the question that needs examination is "whether the election petitioner has set out adequate grounds for asking for recount and further whether he has substantiated those grounds on evidence".

Raj Palelection petitioner in para 12(a) to (f) has set out a case for recount. These need not be repeated over here as they have been stated verbatim in the earlier part of the judgment.

Raj Palelection petitioner while appearing as PW3 reiterated whatever he has stated in the election petition. He has stated that Ram Nath Bishnoi, SDO (Civil), BahadurgarhReturning Officer put the staff of Municipal Committee, Bahadurgarh on counting duty with a view that they help Nafe Singhreturned candidate in the matter of counting of votes as he had been President, Municipal Committee, Bahadurgarh and they had been on visiting terms with each other. Returning Officer did not permit his 6th Counting Agent to enter the counting hall without specifying any reason. Police was on duty inside the wiremesh enclosures so that they create terror in the mind of his Counting Agents and his Counting Agents felt dissuaded from pointing out any unfairness in the counting of votes being adopted by the counting staff. His Counting Agents were sitting on the second bench meant for Counting Agents and they felt handicapped in observing what was going on at the counting tables because they were being obstructed by the Counting Agents sitting on the first bench and, therefore, his Counting Agents were not able to perform their duty as Counting Agents properly and effectively. Out of six counting tables, on five counting tables staff of the Municipal Committee, Bahadurgarh was deputed to perform the duty of counting of votes as Counting Assistants. During counting he was mostly in the counting hall. As Krishan Kumar son of Giani Ram who was his Counting Agent was not allowed entry in the counting hall, Counting table No. 6 was without his Counting Agent. He made objection to the Returning Officer that counting No. 6 was going unattended by his Counting Agent and, therefore, his Counting Agent be also allowed entry in the counting hall so that counting table No. 6 was also attended by his Counting Agent. Returning Officer did not look into this objection, although he raised this objection repeatedly before him. Effect of his repeating this objection time and again was that Returning Officer reduced the number of counting tables to five in the 14th round of counting. In the 14th round five tables had been shown as counting tables. In the 14th round of the counting in place of Shri Satbir Singh, JE, Counting Assistant on counting table No. 4 one Shri Om Parkash, Steno, Municipal Committee, Bahadurgarh was put. He asked the Returning Officer why this replacement on counting table No. 4. He was mum and gave no response. Shri Satbir Singh, JE was removed from counting table No. 4 from the counting of votes because he was counting votes honestly which was felt unpalatable by the Returning Officer as well as the returned candidate. In order Ex. PW1/1 wherethrough the Counting Supervisor and Counting Assistants were appointed for the counting of votes of this constituency. The name of Shri Om Parkash, Steno figures among the reserved staff for the counting of votes and the names of Counting Assistants on table Nos. 1, 2, 3, 4, 5 and 6 figure at page 1 of Order Ex. PW1/1, who were from among the staff of Municipal Committee, Bahadurgarh. From among the Counting Agents provided by him to the Returning Officer, the name of Krishan Kumar son of Giani Ram is missing. So far as Nafe Singhreturned candidate is concerned, he provided six Counting Agents and the names of his six Counting Agents figure at Sr. No. 16 of order Ex. PW1/7. His Counting Agents were raising objection to the invalid votes from being counted among valid votes in favour of the returned candidate, but that objection was also not heeded to by the Returning Officer. Some of the votes which were valid and were polled in his favour were rejected. One of the grounds of rejection of the valid votes polled in his favour was that against his name, there was double impression and the other ground of rejection was that the ink went to the reverse side of the ballot paper and the third ground of rejection was as that the stamp touched the upper and lower line above or below the name of the candidate and the fourth ground of rejection was appearance of small markings on ballot papers. In this manner about 3650 votes were declared invalid although they were valid and polled in his favour. On the aforesaid grounds of rejection, about 1250 votes were declared invalid which had been polled in his favour and which were otherwise valid. There was no valid or just reason for the counting staff and Returning Officer to reject those votes and declare them invalid, though they were quite valid and polled in his favour. On the other hand, there were about 320 such votes as were invalid but they had improperly been declared valid and counted in favour of the returned candidate. The votes counted were put in bundles by keeping the ballot papers in their laps instead on the counting tables by the counting staff. While preparing the bundles of 50 valid ballot papers each, extra votes were being put in the bundles and in this manner the votes put in bundles was either 55 or more and not necessarily 50. It was a serious irregularity offending against the free elections. He raised objection to this effect to the Returning Officer. His Counting Agents also raised objection to this effect, but the Returning Officer did not pay any heed to this objection. On his insistence and persistence with this objection, some of the bundles were rechecked and they were found to contain 55 or 54 votes or so on. The bundles checked were 4 or 5. He requested the Returning Officer to check the remaining bundles which he did not do. In this manner about 1220 votes extra were put in the bundles, which went off the counting mark. On the other hand, the bundles meant for the returned candidate i.e. Nafe Singh less than 50 votes were put but in his kitty 50 votes were counted per bundle although each bundle contained either 44 or 45 votes. In this manner Nafe Singhreturned candidate was put on a position of vantage to the extent of 570 votes. These irregularities and illegalities affected materially the result of the election. Ballot papers received through post were 136 in number. In the final result sheet Form 20 Ex. PW1/2 69 postal valid ballot papers were counted. Out of the 69 postal papers shown to have been counted, he secured 42 votes. Returned candidate secured 7 votes. The remaining 67 postal ballot papers were counted in favour of returned candidate. These 67 votes were not shown in the column of the rejected votes in Form No. 20. Thereafter, in different ink in Form No. 20, the figure of 55 of rejected votes was added. He went on and stated about the tampering and interpolations in Form No. 20. He made an application Ex. PW3/3 for asking recount on 9.5.1996 at about 11.00 PM, when the counting had not been declared but the Returning Officer refused to order recount but without assigning any reason. He returned application Ex. PW3/3 to him with endorsement "A to A and B to B". He did not order recount because he wanted to cause wrongful gain to the returned candidate and wrongful loss to him. Thereafter, he made application to the Election Officer, Rohtak for obtaining certified copies of Form Nos. 16A, 16B and check memo. The Election Officer, Rohtak supplied him the certified copy of Form No. 20. As regards other copies, he was told that the original were available in the double lock and he did not supply him the certified copies thereof. Application for obtaining certified copies was returned to him.

Learned counsel for the respondentreturned candidate submitted that the election petitioner contested the election on Haryana Vikas Party ticket. Haryana Vikas Party returned to power. He did not make application for recount at the time when the counting was going on or after the counting was over. He manipulated this application after the Haryana Vikas Party took reins of the Government. It was submitted that Shri Ram Nath Bishnoi was pressurised into entertaining this application and he entertained this application. It was submitted that if this application had been made earlier, it would have been part of the election record. It was submitted that application for recount was antedated and antetimed and if the application for recount had been made during the period when counting process was going on, it would have formed part of the election record and been sent by the Returning Officer with the election record. It was submitted that this application was produced by the election petitioner before this Court from his own possession and if he had made this application to the Returning Officer, Returning Officer would not have returned this application to him. It was submitted that the fact that this application was returned to him is a made up one. Returning Officer would have given some reason why he was not ordering recount if it had been made to him really on 9.5.1996 at 11.00 P.M.

Learned counsel for the returned candidate submitted that the material paragraphs of the election petition have been verified by the election petitioner on information received from his Counting Agents and not on his own knowledge and he has not produced his Counting Agents in support of his prayer for recount and, therefore, it cannot be said that he had made out a case for recount.

Suffice it to say, he has stated that he was most of the time in the counting hall when the counting was going on. If the was so, he was witness to the process of counting and he could depose about the irregularities/illegalities being committed in its counting process.

It was further submitted by the learned counsel for the returned candidate that this Court has recorded the evidence of the election petitioner only so far and has not recorded the evidence of the returned candidate and it is only after the returned candidate produced evidence to rebut the evidence led by the election petitioner that this Court could form an opinion whether there has been irregularity or illegality in the counting process and whether recount should or should not be recorded. It was submitted that if this court decides without recording evidence of the returnedcandidate on the issue "whether recount should or should not be ordered, the approach of this Court would be truncated and lopsided.

Suffice it to say, returned candidate has not furnished any list of witnesses. Otherwise also, only this much is to be seen whether the election petitioner has made out a prima facie case for recount. If so whether recount should be ordered. Foundation for recount has to be laid by the election petitioner in the election petition and then substantiate at the trial. So far as returned candidate is concerned, he has simply denied the allegations which concern the prayer for recount.

The election petitioner had made definite and positive allegations which according to him suggest that there was bungling in the counting of votes and this bungling materially affected the result of the election. Instead of meeting these positive and definite allegations on some definite footing, returned candidate has made mere denial.

It was further submitted by the learned counsel for the returned candidate that Court should decide all the issues and not treat this matter as preliminary issue.

Suffice it to say in this election petition, election petitioner has not alleged any corrupt practice. He has not challenged the election of the returned candidate on any other ground. He has challenged his election only on the ground that there was improper and unfair counting which tilted the balance in his favour and if there had been proper and fair counting, he (election petitioner) would have been declared elected and the will of the electorate upheld. Ordering or not ordering recount will be decisive of this election petition.

Learned counsel for the returned candidate submitted that while ordering recount we cannot go to the provisions of the Code of Civil Procedure nor to the provisions of any other law but to the provisions of the Representation of the People Act alone and the rules made thereunder. It was submitted that if recount is permissible under the Representation of People Act, 1951, and the rules made thereunder, recount should be ordered. Court cannot resort to the provisions of Section 151 of the Code of Civil Procedure for ordering recount.

It was held in Jyoti Basu and others v. Debi Ghosal and others, 1982(1) Supreme Court Cases 691 that right to elect, to be elected and to dispute an election are neither fundamental rights nor common law rights but are simply statutory rights and, therefore, are subject to statutory limitations. Similarly, an election petition is not an action at common law, nor in equity but is a statutory proceeding to which only statutory rules apply. The statute concerned with the election matters is the Representation of the People Act which is a complete and selfcontained code and within it must be found any rights claimed in relation to an election or an election dispute. It was submitted that this Court will have to look to the provisions of the Representation of People Act and the rules made thereunder, to find out whether the case for recount is or is not made and whether this Court should or should not order recount.

In Joyti Basu and others v. Debi Ghosal and others (supra) the Hon''ble Supreme Court was concerned who are to be joined as party to the election petition and the Hon''ble Supreme Court came to the conclusion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the Representation of the People Act. Hon''ble Supreme Court observed that for determining who are proper parties to an election petition, we do not have to look to the provisions of the Code of Civil Procedure but to the provisions of Section 82 and 86(4) of the Representation of the People Act, 1951 only.

In this case we have to look to the provisions of the Representation of the People Act, 1951, and rules made thereunder and also the provisions of Section 151 of the Code of Civil Procedure for determining whether recount should or should not be ordered. In this case, recount must be ordered with a view to doing full justice between the parties. What will be prejudice to the returned candidate if recount is ordered ? Recount is intended only at ascertaining the will of the electorate. Secrecy of vote is one thing but higher than the secrecy of vote is the ascertainment of the will of the electorate.

In view of what has been said above, the prayer of the election petitioner for inspection and recount of the votes polled at 37Bahadurgarh Assembly Constituency succeeds and is allowed and it is directed that :

(i) Recount of votes shall take place in the High Court premises under the supervision and control of the District and Sessions Judge (Vigilance), Punjab;

(ii) The District Magistrate, Rohtak is directed to send the sealed packets of the ballot papers per messenger;

(iii) S/Shri Rameshwar Malik, Advocate for the petitioner and Sukhbir Singh, Advocate for the returned candidate are directed to be present at the ktime when inspection and recount of votes takes place and till it lasts;

(iv) Only the parties and their counsel will remain present during the recounting; and

(v) The Chief Electoral Officer, Punjab is directed to place at the disposal of District and Sessions Judge (Vigilance), Punjab the services of 8 officials who are well versed with the process of recount of votes and in determining the validity, invalidity of the votes polled and in whose kitty they are to be counted, if they are to be counted.

Case shall be listed before this court for further orders on 24.1.2000 with the report of the District and Sessions Judge (Vigilance), Punjab. During this period, the Distinct and Sessions Judge (Vigilance), Punjab will complete the process of recount of the votes.

A copy of this order be given to Shri Baldev Singh, District and Sessions Judge (Vigilance), Punjab for taking immediate steps to get the sealed packets of the ballot papers from the Deputy Commissioner, Rohtak and he will co ordinate with the Chief Electoral Officer, Punjab so that he provides him the requisite staff for recount of votes to start.

C.M. allowed.