Vidhya Dhar vs Mohan Lal and Others

H.S. Thakur, J.—This election petition has been filed by the Petitioner assailing the election of Respondent No. 1 (hereinafter to be referred to as the ''returned candidate'') with a prayer that the election of the returned candidate be declared void and further that the Petitioner be declared as a duly elected member of the Himachal Pradesh Legislative Assembly from 52-Rajnagar Assembly Constituency. At the same time, the returned candidate has also filed a petition u/s 97 of the Representation of People Act, 1951 (hereinafter to be referred to as the ''Representation Act''), praying that the plea of recrimination, in case his election is declared void, be allowed and the Petitioner, if declared elected, his election be declared void and illegal and he be declared duly elected member of the Himachal Pradesh Legislative Assembly.

The returned candidate has filed reply to the election petition and the Petitioner too has filed reply to the recriminatory petition.

On the pleadings of the parties, numerous issues were framed relating to the election petition as also to the recriminatory petition. Evidence was led by the parties and a large number of witnesses were examined. Arguments addressed by the learned Counsel for the parties were heard at length. Ultimately, arguments were concluded in the election petition as also in the recriminatory petition on August 10, 1984.

During the course of lengthy arguments, the learned Counsel for the parties confined their arguments to limited points. The first point urged by Mr. Mandhotra on behalf of the Petitioner is that out of the total number of 347 rejected votes, as found at the time of recount, 180 are such votes which could not be rejected but should have been counted in favour of the Petitioner. He has further clarified that out of such 180 rejected votes, 100 are such votes on which major portion of the seal is in fact on the symbol of the Petitioner whereas the remaining 80 were such votes on which the seal was on the symbol of the Petitioner but were smudged with different ink and were rejected on that account. The second contention of the learned Counsel for the Petitioner is that in addition to the aforesaid 180 wrongly rejected votes, more 180 votes are such that have been wrongly counted in favour of the returned candidate, though the same had to be counted in favour of the Petitioner. The substance of the above points apparently appears to be that in case the rejected votes as also the total votes were inspected and scrutinized, the Petitioner is bound to be declared as having been elected and the election of the returned candidate is liable to be declared void and illegal.

It is frankly stated by the learned Counsel for the Petitioner that now he confines his case to the aforesaid two points and does not press other issues. Similarly, it is stated by the learned Counsel for the returned candidate that he too confines the relief in the recriminatory petition to the limited extent that in case the inspection and scrutiny of the rejected votes as also of the total votes secured by the returned candidate is allowed, and, ultimately the Petitioner is found to have secured more votes than the returned candidate, the inspection and scrutiny of the total votes secured by the Petitioner be also allowed, and, that he also does not press other issues.

It may also be pointed out that the Petitioner had also filed E.M.Ps. Nos. 20 of 1982 and 21 of 1982. On 10th August, 1984, these E.M.Ps. were considered. In E.M.P. No. 20/82, it was ordered that the District Election Officer, District Chamba, shall produce or cause to be produced the marked copies of the electoral rolls pertaining to polling stations indicated in the said order. The same have been produced by the District Election Officer in the Registry and are in the custody of the Registrar of this Court. In E.M.P. No. 21/82, an order was passed that the packets containing the votes cast in favour of the Petitioner, the Respondent and all the rejected votes of the said constituency be produced in the Court. They have been also produced by the District Election Officer and are in the custody of the Registrar of this Court.

The point whether the inspection of rejected votes should be allowed or not may be considered. It is contended by the learned Counsel for the Petitioner that the counting of votes for the aforesaid constituency started on 22nd May, 1982 and after recount was allowed by the Assistant Returning Officer, difference of 561 votes was worked out between the first counting and the recount. It is pointed out by the learned Counsel that at the time of first count, margin of votes between the Petitioner and the returned candidate was declared of 136 votes whereas at the time of recount, the margin of votes was reduced to 42. Reference has also been made to certain documents. Ex. P. 1 is a document prepared by the Petitioner in which the difference of total votes between the first count and the second count has been worked out as that of 561 votes. Ex. P. 2 which is identical to Ex. R. 8 produced by the Respondent is a certified copy of the final result sheet of the first count. According to this document, the total number of votes cast has been worked out as 25,083 and the total number of rejected votes as 318. Again, according to the said document the total number of votes secured by the returned candidate has been worked out as 12,267 whereas the total number of votes secured by the Petitioner has been worked as 12,131. ExP. 3, which has been also marked as R. 32 is the final result sheet prepared after the recount? According to this document, the total number of votes cast in the constituency has been worked out as 24,522 and the total number of rejected votes as 347. This document shows that the returned candidate secured 11,927 votes whereas the Petitioner got 11,885 votes. Ex.P. 4 is the original application submitted by the Petitioner to the Returning Officer in which the Petitioner has prayed for changing the counting staff and officers, and has specifically named three officers therein. Three of such officers named are S/Shri K.S. Kapoor, D.H.O., R.L. Sud, D.F.O. and Ishwar Dass, Assistant Treasury Officer. The learned Counsel has also referred to Ex.R. 1, a certified copy produced by the returned candidate. In fact, this is an application filed by the Petitioner praying for a recount of votes, on 22nd May, 1982. On the said application, an order has been passed by the Assistant Returning Officer that "The result has not been announced so far. The question of recounting at this stage does not arise." Ex.R.2 is another application addressed by the Petitioner to the Returning Officer on 22nd May, 1982, requesting for the recounting of votes. The Assistant Returning Officer passed the following order on this application:

The total votes polled by each candidate were announced at 10.20 p.m. and immediately thereafter Shri Vidya Dhar filed this application asking for recount of votes.

Since it is already 10.25 p.m. now, it is not considered feasible or reasonable to insist on detailed reasons just now. The request of the candidate is acceded to land he is allowed to put forth detailed reasons by 2.00 p.m. on 23-5-1982.

The material of counting of votes is lying in the counting hall and shall be kept in trunks duly sealed with proper escort. Any body desirous of affixing his own seal thereon is welcome to do so.

The applicant had sought time up to 11.00 a.m. only but we are expected to be busy in counting of votes relating to 52-Rajnagar (ST) A.C., we have allowed more time for the purpose. Announced.

Sd/- (SHAMSHER SINGH) R.R.O. All A.C�s Chamba 22-5-82.�

Ex.R. 5 is an application filed by the Petitioner on 23rd May, 1982. In this application again, the claim for recounting has been emphasised, mainly for the reasons contained in the said application. Ex.P. 6 is the copy of the order passed by the Assistant Returning Officer on 23rd May, 1982 allowing the recounting of the votes after considering the allegations made by the Petitioner. Ex.R. 7 is also an order made by the Assistant Returning Officer on the application of Shri Gian Chand, one of the candidates.

Mr. M.G. Chitkara, learned Counsel for the returned candidate, has referred to paragraphs 4, 5, 6, 7 and 8 of the election petition and the reply thereto. While referring to these paragraphs of the reply, Mr. Chitkara has contended that the Petitioner had put up lame excuses in demanding recount. According to him, the Petitioner in the application Ex.R. 1 only stated that he was not satisfied with the counting. He has emphasised that the Petitioner had been improving his stand for claiming recount from time to time. It is also contended that in the election petition, the Petitioner has justified recounting by giving additional grounds. The returned candidate in the reply has specifically stated that the counting was conducted properly and the counting officers were not biased against the Petitioner. According to the returned candidate, the Assistant Returning Officer had unduly helped the Petitioner in not rejecting the applications, Ex.R. 1 and Ex.R. 2. The returned candidate has also emphasised that as a matter of fact, the number of votes shown to have been rejected were actually cast in his favour and that about 500 votes were such that were cast in his favour but were wrongly allotted to the Petitioner and thereby the margin of victory of the returned candidate has been reduced to a larger extent.

Mr. Chitkara has drawn my attention to Ex.R. 9. This is a note of the Assistant Returning Officer dated 22nd May, 1982, which reads as under:

The votes polled by each candidate were announced and a pause was observed. Shri Vidya Dhar a candidate who was present raised an objection that he was not satisfied with the counting. This application was accepted and further action stopped.

A cursory checking of vertical totals revealed that these were also incorrect. Result was not formally declared and was not signed.

Sd/- Asstt. Returning Officer, 52-Rajnagar (SC) A.C 22-5-1982.

In respect of Ex.R.32 which is also marked Ex.P. 3, it is contended that if correct total of the result sheet Ex.R. 8 dated 22nd May, 1982 is done, there is no mistake in total as indicated in Ex.R. 32. On that basis, Mr. Chitkara contends that the counting staff was more inclined in favour of the Petitioner to the disadvantage of the returned candidate. He has further contended that the Assistant Returning Officer was not justified in allowing recount and the result declared at the time of first count was perfectly valid and count not be disturbed. It is pointed out by Mr. Mandhotra that there has been variation of the number of votes at severa 1 polling stations. It is contended by him that at polling station No. 30, total number of votes counted on May 22, 1982, as per Ex.P. 2, was shown 477 but at the time of recount, the total number of votes at the said polling station was shown 478. Similarly at polling station No. 38, the total number of votes cast, shown at the time of the first count was 541 but on recounting the number has been shown 543. It is also pointed out that at polling station No. 1, the total number of rejected votes on first count was shown 14, but on recount the same was worked out as 16. Again, at polling station No. 2, the number of rejected votes on first count was worked out 4 but on recount it was shown 7. Similarly, at polling station No. 5, at the first count the number of rejected votes is shown 3 whereas on recount it was 4. Similarly, at polling station No. 9, the number of rejected votes at the first count was shown 4 but on recount it was 3. At polling station No. 11, at the time of first count the number of rejected votes was 2 but on recount it was 3. Same is stated to be the position in respect of the polling stations Nos. 13, 15, 16, 17, 19, 20, 26, 27, 28, 29, 30, 34, 35, 40, 48, 52, 53, 54, 57, 60, 61, 62, 64, 68, 70, 72 and 73, where difference is found at the first count and the recount. It is ultimately pointed out by the learned Counsel for the Petitioner that at the time of first count the total number of rejected votes was 318 whereas on recount it increased to 347.

Mr. Mandhotra has referred to certain decisions in support of his contentions. He has drawn my attention to the decision of the Supreme Court in S. Raghbir Singh Gill Vs. S. Gurcharan Singh Tohra and Others, He has referred to paragraphs 33, 34, 36, 44 and 47 of the judgment. This was a case in which one of the issues was whether a case for inspection of ballot papers was made out or not. The relevant observations of paragraph 33 may be extracted:

...True, recount cannot be ordered just for the asking. A petition for recount after inspection of the ballot papers must contain an adequate statement on material facts on which the Petitioner relies in support of his case and secondly the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties is necessary. 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 inquiry with a view to fishing out materials for declaring the election 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....

The relevant observations from paragraph 34 may also be extracted:

...A petition for a recount on the allegation of miscount or error in counting is based upon not specific allegation of miscounting but errors which may indicate a miscount and recount becomes necessary. When it is alleged that postal ballot papers were tampered with, the implication in law is that those postal ballot papers have been wrongly received in favour of a candidate not entitled to the same and improperly refused in favour of the candidate entitled to the same, and this is a miscount and a recount is necessary. In the very nature of things the allegation can be not on each specific instance of an error of counting or miscount but broad allegations indicating error in counting or miscount necessitating a recount.

In paragraph 36 of the aforesaid judgment, it was observed that:

...After postal ballot papers were taken out and mixed up and then unfolded for the purpose of counting, if the counting agent keeps a watchful eye he is bound to notice the glaring tampering. He did in fact lodge an oral protest and at his instance recount was ordered thrice. His failure to prepare and submit a contemporaneous written record of what he had noticed cannot detract from his evidence. And a written contemporaneous protest at the counting is not a condition precedent to fifing an election petition for recount. It thus clearly transpires that the allegation in the petition coupled with the evidence of M.S. Khera would rather satisfy the test laid down by this Court, namely, that the learned Judge had material to be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties an inspection of ballot papers was necessary. The discretion used in this behalf is amply justified.

The next judgment of the Supreme Court to which reference has been made is Km. Shradha Devi Vs. Krishna Chandra Pant and Others, My attention has been drawn to paragraphs 8 and 15 of the said judgment.

The relevant observations from these paragraphs may be extracted:

When a petition is for relief of scrutiny and recount on the allegation of miscount, the Petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of miscount, Petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. If the recount is limited to those ballot papers in respect of which there is a specific allegation of error and the correlation is established, the approach would work havoc in a Parliamentary constituency where more often we find 10,000 or more votes are being rejected as invalid. Law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot papers which answer the error and then take into consideration only those ballot papers and not others. This is not the area of inquiry in a petition for relief of recount on the ground of miscount. True, it is that a recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of Returning Officer (see Halsbury''s Law of England, 4th Edn., Vol. 15, para 940). This Court has in terms held that prima facie proof of error complained of must be given by the electioner and it must further be shown that the errors are of such magnitude that the result of the election so far as it affects the returned candidate is materially affected, then recount is directed...."

The High Court did not examine the other 9 ballot papers on the erroneous view that only two were correlated to the averments in the plaint. There was specific averment in para 18 of the petition that the marks were not such as to lead to identity of the elector and that the ballot papers could not be rejected as invalid under Rule 73(2)(d). This allegation is wholly substantiated by a casual look at the remaining 9 ballot papers. The error is apparent. Once the error has been established the scrutiny and recount had to be ordered as a prima facie case of miscount is made and, therefore, the decision of the High Court is liable to be set aside. At one stage we were inclined to examine the validity of each ballot paper. But as the High Court has not undertaken that exercise, it would not be proper for us to undertake the same for the first time here. The position of law having been made very clear, namely, that once an error is established it is not necessary that the pleadings must show error in respect of each individual invalid ballot papers. Prima facie proof of error resulting in miscount having been established, a scrutiny and recount has to be ordered. And the scrutiny of invalid ballot papers must precede recount....

Still another decision to which reference has been made by the learned Counsel for the Petitioner is the decision of the Supreme Court in Arun Kumar Bose Vs. Mohd. Furkan Ansari and Others, My attention has been specifically drawn to paragraphs 8, 9, 15 and 16 of the said judgment. It is expedient to extract relevant observations from the said paragraphs:

8...According to Mr. Rangarajan the pleading in paragraph 9(i) does not amount to concise statement of the material facts. Appellant''s learned Counsel has placed reliance on the observations in Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, where, with reference to Section 83 of the Act it has been said that the petition must contain a concise statement of the material facts on which the Petitioner relies and the fullest possible particulars should be given. Material facts and material particulars may overlap. Balakrishna''s case where Hidayatullah, C.J. made these observations was one where allegations of corrupt practice had been made and the case came u/s 83(1)(b) of the Act. Obviously, allegations of corrupt practice being in the nature of a criminal charge, the Act requires full particulars to be given. The scheme in Section 83(1) of the Act makes the position very clear. Clause(a) refers to general allegations and requires a concise statement of material facts to be furnished while Clause(b) referring to corrupt practice requires all details to be given. Appellant''s counsel, therefore, was not entitled, to rely upon the proposition in Balakrishna''s case for the present purpose. So far as averment in para 9(1) of the election petition is concerned, we find that the number of ballot papers alleged to have been wrongly rejected has been furnished, the counting table number has been given, the booth number has also been disclosed and the ground for rejection has even been pleaded. Respondent No.1 pleaded that the particulars of the ballot papers could not be obtained as during counting they were not shown. His counting agent at table No. 10 has been examined as his witness No. 3. He has staged:

The ballot box of Fukbandi booth No. 10 was brought on my table and it was intact. That ballot box contained some ballot papers which were not bearing signature of the Presiding Officer. I raised objection in respect of those ballot papers that they should not be treated as doubtful ballot papers to be sent to the Returning Officer. Counting Supervisor did not listen to my protest and sent them to the Returning Officer as doubtful ballot papers. There were 74 such ballot papers.

...In view of the statement of the counting agent of Respondent No.1 and the evidence of the Assistant Returning Officer there can be no scope to doubt, and in our view the High Court was right in taking the view, that the particulars of the rejected ballot papers were not available to the counting agents and, therefore, particulars of the numbers of the ballot papers had not been given in the election perilion. We agree with the High Court that in the facts and circumstances of the case the pleading in paragraph 9(i) set out the material facts in a proper way and no defect can be found with it.

Mr. Rangarajan next canvassed that the High Court went wrong in allowing inspection of the ballot papers. Reliance was placed on the decision of this Court in the case of Bhabhi Vs. Sheo Govind and Others, where it has been held that the following conditions were imperative before the Court could grant inspection or sample inspection of ballot papers:

(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;

(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specified and must be supported by adequate statements of material facts;

(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;

(4) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and

(5) That 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.

15...We have already indicated that the Appellant as the elected candidate in his written statement had pleaded that the counting was in accordance with law and not objectionable. The effect of such a plea is that the ballot papers which had been cast in his favour but credit had not been given there of had been validly rejected. In the election petition two reliefs had been claimed, firstly, for setting aside the election of the returned candidate, i.e. the Appellant, and secondly, for a declaration that the election Petitioner (Respondent No. 1) was the duly elected candidate. The relief claimed was in terms of Section 100(1)(d)(iii) and Section 101(a) of the Act. The election Petitioner had claimed that there was improper rejection of votes cast in his favour and that he had received a majority of the valid votes at the election. The Act makes in Section 97 provision for recrimination. Sub-section (1) of that section which is material reads thus:

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 shall not be entitled to give such evidence 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 he has also given the security and the further security referred to in Sections 117 and 118 respectively.

16...There are, however, cases in which the election petition makes a double claim; it claims that the election of the returned candidate is void, and also asks for a declaration that the Petitioner himself or some other person has been duly elected. It is in regard to such a composite case that Section 100 as well as Section 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected Section 97 comes into play. Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected, and these would, be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter Petitioner challenging the validity of the election of the alternative candidate. The result of Section 97, therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the Petitioner, but also the counter-claim made by the returned candidate. That being the nature of the proceeding contemplated by Section 97(1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by Section 97(1) proviso and Section 97(2). If the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by the petition. In such a case, an enquiry would be held u/s 100 so far as the validity of the returned candidate''s election is concerned, and if as a result of the said enquiry a declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with alternative claim, but in doing so, the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate.

In order to repel the contentions of the learned Counsel for the Petitioner, Mr. Chitkara, learned Counsel for the returned candidate, has referred to the decision of the Supreme Court in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, He has referred to paragraphs 7 and 11 of this judgment. The said paragraphs may be reproduced in extenso:

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.

But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the Petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted, But a mere allegation that the Petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.

It is stressed by Mr. Chitkara that in the election petition, the Petitioner has stated that he was definitely of the opinion that counting was not properly done and the counting officers were biased against him and that such allegations were not made in the applications filed by the Petitioner for claiming recount.

The relevant observations from paragraph 11 of the aforesaid judgment may be extracted:

...To support his claim for setting aside the election the Petitioner has to make precise allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend upon the facts of each case. But if material facts are not stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of ballot papers...."

Another decision to which reference has been made is a judgment of the Supreme Court in Shri Jitendra Bahadur Singh Vs. Shri Kirshna Behari and Others, He has specifically referred to paragraphs 8 and 10 of this judgment. The said paragraphs may be reproduced in extenso:

The trial court was of the opinion that 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. In the instant case apart from giving certain figures whether true or imaginary, 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 Congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information. It is not his case that they maintained any notes or that he examined their notes, if there were any. 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. The facts stated in paragraphs 13 and 14 of the election petition and in Schedule ''E'' are mere allegations and are not material facts supporting those allegations. This Court in insisting that the ejection Petitioner should state in the petition the material facts was referring to a point of substance and not of mere form. Unfortunately the trial court has mistaken the form for the substance. The material facts disclosed by the Petitioner must afford an adequate basis for the allegations made.

Now coming to the rejection of the votes polled in favour of the Congress nominee, under the rules, before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore it was quite easy for them to note down the serial number of the concerned ballot papers. 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. These again are the material facts required to be stated.

The learned Counsel has also referred to a decision of the Supreme Court in Bhabhi Vs. Sheo Govind and Others, He has specifically referred to paragraph 17 of this judgment. Relevant observations from this paragraph may be extracted:

Finally there were intrinsic circumstances in this case which went to show that unless the Respondent was able to place cogent materials this was not a case for allowing sample inspection at all. In the first place although the counting agents of the Respondent were present at the time when the votes were counted no application for a recount was made under Rule 63 of the Conduct of Election Rules, 1961. The nature of the allegations made by the Respondent in his petition as alluded to above was such as could have been easily verified at the spot by the Returning Officer, if his attention was drawn to those facts by an application made under Rule 63 of the Conduct of Election Rules, 1961 Secondly the learned Judge overlooked that the Respondent had not given the material particulars of the facts on the basis of which he wanted an order for sample inspection of ballot papers. No serial of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected given by the Respondent. Even the segment in which the irregularity had occurred was not mentioned in the petition. We, however, refrain from making any further observation as to what would be the effect of non-disclosure of these particulars because we intend to remit the case to the learned Judge for rehearing the matter and deciding the application for inspection. What appears to have weighed with the Judge is the solitary circumstance that the Appellant had succeeded by a narrow margin and that was a sufficient ground for ordering sample inspection. We are, however, unable to agree with this broad statement of the law by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election.

Again, the learned Counsel has referred to a decision of the Supreme Court in Beliram Bhalaik Vs. Jai Beharilal Khachi and Another, He has referred to paragraph 43 of the said judgment. The said paragraph maybe reproduced for a ready reference:

Alok''s version received full assurance from the circumstance that even in the belated application Ex.D.W. 13/2 no irregularity or illegality, whatever, in the counting was mentioned. All that was stated therein was that the Appellant was not satisfied with the counting and therefore wanted a recount. It did not contain any ground on which a recount was sought, and as such, did not comply with the mandatory requirement of Rule 63(2) of the Conduct of Election Rules, 1961, which provides that after the announcement of the result of counting, a candidate or in his absence his election agent or any of his counting agents 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. A whimsical and bald statement of the candidate that he is not satisfied with the counting, Is not tanamount to a statement of the "grounds" within the contemplation of Rule (632). The application was thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to any irregularities in the counting. It was liable to be rejected summarily under Sub-rule(3) of Rule 63, also. That apart, it was presented about half an hour after the Returning Officer had completed and signed the result sheet in Form 20. Sub-rule(6) of the Rule expressly debars the Returning Officer from entertaining an application for recount at such a late stage. The Returning Officer had therefore, rightly rejected the application as belated.

Mr. Chitkara has pointed out that no allegation of bias against the counting officers was made by the Petitioner in the applications moved by him, that is, Ex.R. 1 and Ex.R. 2 nor was there any request for changing the counting staff. Ex.P. 4 the application for change of counting staff is addressed to the Returning Officer who appeared as P.W. 72. This application has not been put to him because it was sent by him to the Assistant Returning Officer. On the basis of these facts, the learned Counsel has referred to a decision of the Supreme Court in Chanda Singh Vs. Choudhary Shiv Ram Verma and Others, The contention of the learned Counsel is that the Returning Officer was not justified in giving recount of votes. He has referred to paragraph 4 of the said judgment which is reproduced as under:

...Rule 63 certainly states that the demand for recount may be rejected if ''it appears to him (Returning Officer) to be frivolous or unreasonable'' and this requirement, it is argued, has been violated. There is no special charm in phrases like ''frivolous or unreasonable''. What is not reasonably grounded or seriously supported is unreasonable or frivolous. Against the background of the paramount consideration of the secrecy of the ballot, the Returning Officer was right in dismissing the request bereft of credible factors and unbacked by clearly articulated apprehensions. We may mention even at this stage that here the lead is not tiny, going by the narrowness of margin by which many candidates are returned. Suspicious of possible mischief in the process or likely errors in counting always linger in the mind of the defeated candidate when he is shocked by an unexpected result . The Returning Officer has to be careful, objective and sensitive in assessing the legitimacy of the plea for re-running the course of counting. Victory by a very few votes may certainly be ground to fear unwitting error in count given other circumstances tending that way.

The learned Counsel has also referred to a decision in N. Narayanan v. Semmalai and Ors. AIR 1930 SC 205. Specific reference has been made to paragraphs 10 and 15 of the judgment. The relevant observations from paragraphs 10 and 15 may be extracted:

Para 9 of the election petition is also frightfully vague, the relevant portion of which runs thus:

The counting was particularly faulty and unsatisfactory and defective during the 3rd round and at tables Nos. 8 to 10, 13.

It was also alleged that Srinivasan was consistently talking to Selvaraj during the counting. Several allegations appear to have been made in paragraph 9 also regarding the influence exercised by the Appellant''s brother Srinivasan but no complaint regarding this matter was made to anybody and we shall presently show that even in the application which the Respondent filed before the Returning Officer most of the allegations made by the Respondent in the election petition are conspicuously absent.

Another serious allegation of partiality was made by the Respondent that most of the counting staff was directly connected with the Appellant was also disbelieved and the Judge observed thus:

Even if the facts alleged by the Petitioner that some of the counting staff owed their appointment to the first Respondent and that they were working in the Panchayat Union Council in which the first Respondent was the Chairman are true,, it will not automatically amount to proof of the allegation of partiality. It has been pointed out time and again by the Supreme Court that to tarnish the counting with bias or partiality is easy for any party who challenges the election of a returned candidate and that the Court should be reluctant to lend quick credence to the mud of partiality slung at counting officials by desperate and defeated candidates.

Mr. Chitkara has drawn my attention to two other decisions of the Supreme Court on this point. The first decision is in the case Shri Ram Autar Singh Bhadauria Vs. Chaudhari Ram Gopal Singh and Others, . Pertinent paragraphs of the judgment, according to the learned Counsel, are 13, 16 and 28. Relevant observations from paragraph 13 may be extracted:

13...As clarified by this Court in Jabar Singh Vs. Genda Lal, the scope of the inquiry in a case u/s 100(1)(d)(iii) is to determine whether any votes had been improperly cast in favour of the returned candidate or any votes had been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant for deciding whether the election of the returned candidate had been materially affected or not. At such an enquiry the burden is on the Petitioner to prove his allegations. In fact Section 97(1) of the Act has no application to a case falling u/s 100(1)(d)(iii). The scope of the enquiry is limited for the simple reason that what the clause requires to be considered is, whether the election of the returned candidate has been materially affected and nothing else.

Relevant observations from paragraphs 16 and 28 may also be extracted:

The above being the law on the point, it is clear that the learned Judge was in error in ordering general inspection and recount of the total votes polled at the election, merely because in these additional pleas the returned candidate also, had by way of recrimination, complained of wrong reception and rejection of votes and wrong counting of votes. These pleas at this stage could not be investigated even in the recriminatory petition filed by the returned candidate. They were beyond the scope of the enquiry into the Petitioner''s case which (as set up in para 11 of the petition) fell u/s 100(1)(d)(iii) of the Act.

Times out of number, this Court has pointed out that a general scrutiny and recount of the ballot papers should not be lightly ordered. Before making such an extraordinary order, the Court must be satisfied that all the material facts have been pleaded and proved and that such a course is imperatively necessary in the interests of justice. In the case in hand, the allegations in the election petition (vide Paragraph 11) are confined to 41 plus 9, total 50 votes only (vide Paragraph). There was no foundation in the petition for ordering a general recount. Nor could the additional pleas in the written statement of the returned candidate be taken into account for making an order for general inspection of the ballots, because investigation of those pleas was beyond the scope of the case alleged in para 11 of the petition, falling u/s 100(1)(d)(iii) of the Act.

The learned Counsel has also referred to a decision of the Supreme Court in M. Naryana Rao v. C. Venkata Reddy and Ors. AIR 1977 SC 217. He has laid emphasis on paragraph 22 of the said judgment. The relevant observations from the said paragraph may be extracted:

...Sitaramayya, as the finding of the High Court is, was assaulted by some person on the 2nd of March. That must have put Reddy on his guard to meet any eventuality of force. After all he was a sitting member belonging to the ruling party who, we are told, was in power in the State of Andhra Pradesh at the time of the election in question. It is difficult to accept or imagine that any police officer especially a person of the rank of a Deputy Superintendent of Police or the police in general would have gone against Reddy and favoured and sided with Rao....

The last decision of the Supreme Court referred to by Mr. Chitkara is in D.P. Sharma Vs. Commissioner and Returning Officer and Others, . He has laid emphasis on paragraphs 4 and 5 of the aid judgment. Relevant observations of paragraph 4 may be extracted:

...It may be stated that the total number of votes that had been cast at the election were to the tune of 4,36,536 and compared to the magnitude of the votes cast the discrepancy as regards the excess ballot papers found in the ballot boxes is too insignificant and in any case it is nowhere near the margin of 2727 votes by which the Respondent No. 12 defeated the Appellant. We are of the view that these discrepancies are so insignificant in character that they could be safely attributed to accidental slip or clerical or arithmetical mistakes that must have been committed at the time of counting and preparation of the statements in Forms 16 and 20. In our view, these discrepancies by themselves do not make out a case for directing a recount of votes. It is well established that in order to obtain recount of votes a proper foundation is required to be laid by the election Petitioner indicating the precise material on the basis of which it would be urged by him with some substance that there has been either improper reception of invalid votes in favour of the elected candidate or improper rejection of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidate which had in reality been cast in favour of the defeated candidate. Admittedly, no such material was placed by the Appellant either before the High Court or this Court. In that view of the matter by themselves the discrepancies which have been pointed out by counsel for the Appellant in the statements required to be prepared under Rules 45 and 56, do not make out a case for directing a recount of votes.

Relevant observations in paragraph 5 of the judgment may also be extracted:

In any case, as stated earlier, no prejudice is shown to have caused to the Appellant by the discrepancies pointed out in the statutory Forms 16 and 20; particularly the discrepancies in regard to the excess ballot papers found would not have affected or altered the result of the election.

These are the decisions which have been referred to by the learned Counsel for the parties. Bearing in mind the principles as laid down in the aforesaid decisions of the Supreme Court, I now proceed to consider the evidence placed on record. I have already referred to certain documents placed on record.

The learned Counsel for the parties have confined their arguments to two points, firstly, that according to the Petitioner, out of 347 rejected votes, 180 are such votes which should have been counted in his favour and, secondly, that 180 votes are such that have been wrongly counted in favour of the returned candidate though the same had to be validly counted in favour of the Petitioner. Under the circumstances, the evidence will be considered on these two points and the evidence of such witnesses alone will be discussed who have deposed concerning the same. The learned Counsel for the Petitioner has pointed out that P.Ws. 65, 66, 67, 68, 73 and R.Ws. 4, 5, 8 and 9 are the only relevant witnesses concerning the aforesaid points. P.W. 65 is Shri Dharam Singh, who was appointed a counting agent at the time of recount by the Petitioner. He has, inter alia, stated that he was at table No. 1 and during the recount, certain doubtful votes were set apart and were handed over to the Assistant Returning Officer (A.R.O. short) for his decision. According to htm, there were about 20 or 22 votes which were of doubtful nature. He has asserted that on these ballot papers though the seal was correctly put but bore certain impressions of ink of a colour different to one which was supplied at the time of voting. He has further asserted that the seal was on the symbol of the Petitioner. He has also stated that some 7/8 ballot papers were such which contained the impression of the seal but on account of folding at the time of voting these votes did not give a clear impression of the seal. He has deposed that the Petitioner had raised objection that his votes were not being correctly counted in his favour and that favour was being shown to the returned candidate. He has further deposed that it was objected that the votes which should have been counted in favour of the Petitioner were being counted in favour of the returned candidate. In his cross-examination, the witness, inter alia, stated that at the table where he was acting as a counting agent, five compartments were made, four were meant for the candidates in the election and the fifth was meant for doubtful votes. According to him, one category of votes which he objected to and asked for being declared as doubtful was that a stamp was put on the symbol of a candidate but some ink either carrying the impression of a finger or having been spilt over was there and, that the number of such votes was 20/25. According to him, the second category of votes which were objected to were such that the excessive ink had been used while putting the seal on a symbol and the impression of the ink had crossed into the symbol of other candidates. He has deposed such votes were 7 or 8 in number. The other category of votes, according to him, which were objected to had impression of the seal on the symbol of two candidates and they were about 15/16 in number. He has also deposed that there were also such votes which bore the seal on the opposite side of the ballot paper and they were 7 or 8 in number. The witness has clarified that he had given the number of objected votes at table No. 1, where he was working as counting agent. P.W. 66 is Shri Karam Singh. He has stated that the Petitioner had filed an application before the Returning Officer on 23rd May, 1982 for changing certain members of the counting staff and that he was accompanied by him and S/Shri Tek Chand Verma and Khem Raj Abrol. He has deposed that the Returning Officer told them that they should go to the General Assistant who would decide the application. Nothing material in the cross-examination has been extracted from this witness. P.W. 67 is Shri Tek Chand, who was counting agent of the Petitioner on May 22 and May 23, 1982. He has deposed that he found that about 100 votes were such which should have been counted in favour of the Petitioner but were rejected. He has further stated that there were about 50 such votes which were counted in favour of the returned candidate and should have been rejected. He has asserted that besides the above, there were about 100 votes out of which 70 or 80 were such that the stamp had been put on the symbol of the Petitioner but there were finger prints in different colour than the colour of the ink used for stamping. He has also deposed that 25 or 30 out of the aforesaid votes were such that major portion of the seal appeared on the symbol of the Petitioner whereas minor portion appeared on the symbol of Respondent Gian Chand. According to him, these votes should have been counted in favour of the Petitioner. He has also pointed out that there were about 100 such votes which should have been counted in favour of the Petitioner but were wrongly counted in favour of the returned candidate. He has asserted that the Petitioner had objected that the votes which should have been counted in his favour had been counted in favour of the returned candidate or had been rejected. He has deposed that the counting on May 22, 1982 had concluded by 10.30 or 11.00 p.m. and on that day after the counting had completed the total number of votes cast had been shown as 25,083. He has asserted that he acted as a counting agent of the Petitioner as well when recount was given and that the total number of votes cast was shown as 24,522, which was less than the total number of votes shown on May 22, 1982. He has deposed that after the recount, he as well as the Petitioner objected about the difference but no action was taken. He has asserted that before the recount was started, the Petitioner accompanied by him and S/Shri Karam Singh and Khem Raj approached the returning officer and presented the application for changing some of the members of the counting staff. They were, however, directed by the Returning Officer to go to the A.R.O. where they went. According to the witness, the A.R.O. did not consider the application and threw it down. The witness has pointed out that ultimately the Petitioner had also made a request that at least at three tables the counting staff should be changed but the said request was also not acceded to. He has asserted that the Petitioner had specifically named S/Shri Kapoor, Sood and another person whose name he did not know, who were requested to be changed. In the cross-examination, the witness has stated that he was at table No. 3 on May 22 and at table No. 2 on May 23, 1982. The witness could not say at which table the aforesaid three employees were deputed. He has admitted in the cross-examination that after every round, the disputed votes were sent to the A.R.O. for decision and that after hearing the objections of the parties he used to give decision. He showed his ignorance whether the decision was written on the ballot paper or not. The witness also showed his ignorance as to what was the total number of votes which were rejected or wrongly counted in favour of the returned candidate on May 22, 1982. The witness could not tell the serial numbers of the votes which were disputed at his table. The witness admitted that he was the Vice-President of the District Congress Committee. P.W. 68 is Shri Khem Raj, who was acting as a counting agent of the Petitioner. It is stated by him that on May 22, he was sitting at the table of the A.R.O. He has asserted that the A.R.O. rejected about 100/120 votes which should have been counted in favour of the Petitioner. According to him, out of the said votes 70 or 80 were such on which the stamp had been put on the symbol of the Petitioner but there were some spots of some pen ink on ballot papers on different places. He has asserted that 20 or 30 votes were such on which the stamp had been put mainly on the election symbol of the Petitioner but a small part of the stamp appeared at the symbol of J Lok Dal candidate. According to him, the intention of the voters was clear that the votes had been cast in favour of the Petitioner but such votes were rejected. He has further deposed that besides the above votes, there were 100 such votes that could be easily counted in favour of the Petitioner but the same were rejected and counted in favour of the returned candidate. According to the witness, there were yet another 50/60 such votes that had to be rejected but were counted in favour of the returned candidate. He has also asserted that after the counting was over and calculations were going on, the Petitioner filed an application that justice had not been done to him in the counting and, that he prayed for recount. According to the witness on the following day, that is, 23rd May, 1982, the Petitioner, he himself and S/Shri Tek Chand and Karam Singh went to the Deputy Commissioner and requested that the staff for recount be changed. They were, however, directed to approach the A.R.O. He has deposed that the Petitioner had submitted an application written in English to the Returning Officer which was returned to the Petitioner and they were directed to submit the same before the A.R.O. He has also deposed that he did not accompany the Petitioner before the A.R.O. In his cross-examination, he has admitted that he is the General Secretary of Chamba District Congress Committee. He has further admitted that he did not act as counting agent on May 23, 1982 when the recount was held. In his cross-examination, the witness stated that the application was written in English but could not tell who was the scribe. The witness stated that he could not say about the defects in counting in every round. He also admitted that he could not tell the serial numbers of the votes that were counted wrongly. He has asserted that he raised objections in respect of wrong counting of votes but the A.R.O. did not pay any heed to his objections. P.W. 73 is the Petitioner himself. Inter-alia, it is stated by him that he was present at the time of counting on May 22, 1982. He has pointed out that at the time of counting, he saw the impressions of fingers on certain ballot papers and pointed out to the A.R.O. those impressions which were in ordinary ink. He has asserted that he had doubts about fair counting and walked around the tables where the counting was going on. He has stated that he found that there were impressions of ink on the fingers of certain officials who were counting the votes and that the finger impressions on the ballot papers were caused during the process of counting. He has deposed that since he had every reasonable apprehension that counting was not done properly, he submitted an application to the A.R.O. that the votes which had been counted be recounted. According to him, he was told by the A.R.O. that recounting could not be done at that stage and that it could be claimed only after the counting had been completed. He has further asserted that a Sikh gentleman, who was District Horticulture Officer at that time, was acting as A.R.O. and his name was one Mr. Kapoor, but did not remember his full name. According to the witness, the election result was declared on May, 22, 1982 during the night at about 11.00 p.m. He has given the details of the result-sheet in his statement and has deposed that he prepared the notes of the votes cast and secured by him and other candidates. The note of such details has been marked as Ex.P. 1, which he got typed. He has deposed that before the result was declared, he filed an application before the A.R.O. for claiming recount. According to him, the A.R.O. told him that the application would be decided on May 23,1982 at about 10/11 a.m. According to the Petitioner, he again filed an application for recount which was allowed by the A.R.O. He has asserted that after recount when the result was declared on May 23, he obtained a certified copy of the result-sheet from the election office of Chamba district (Ex.P. 3). He has deposed that before the recounting started on May 23, he filed an application requesting the District Returning Officer to change the counting staff (Ex.P. 4). He stated that the District Returning Officer told him that the application be submitted to the A.R.O. According to him, when he went to the A.R.O. and presented the application he behaved very rudely and threw down the application. He has further deposed that the A.R.O. was Sardar Shamsher Singh, who was General Assistant to the Deputy Commissioner at Chamba. The witness has repeated that at the time of recounting, silmilar mistakes were committed which he had stated earlier in respect of the first count. He has asserted that about 80 such votes on which the seal was put on his election symbol i.e. human hand were found bearing the impression of finger prints in the ordinary ink and that those votes were not counted in his favour. According to him, the finger impressions in ordinary ink were put on his election symbol with the purpose that those ballot papers may not be counted in his favour. He has further asserted that such impressions were put by the counting party. He has emphasised that he had seen the impression of ink on the finger of R.L. Sood, Divisional Forest Officer and on the fingers of a counting person who was an official of the Government at the table on which Shri K.S. Kapoor, District Horticulture Officer was the in charge. He has deposed that besides this, at the time of counting on 23rd May, there were about 100 such ballot papers on which the substantial portion of the seal was on his election symbol whereas negligible portion of the seal was towards the election symbol of Lok Dal candidate Shri Gian Chand. According to him, such votes had to be counted in his favour but were rejected. He has further asserted that at the time of recount, he told the A.R.O. to count such votes in his favour but his request was turned down. According to the Petitioner, there were also about 180 other such votes on which the major portion of the seal was on the election symbol of the Petitioner but a negligible part of the seal was put on the election symbol of the returned candidate and that these votes were counted in favour of the returned candidate. The Petitioner has asserted that similar situation prevailed at the time of recounting. In his cross-examination, the Petitioner when shown EMP No. 26/82, admitted that there is an overwriting in respect of the dates in the said EMP as also the affidavit. He however, stated that he could not say who had done it. He also could not tell the date when he swore the affidavit but stated that the affidavit was attested on 3rd November, 1982 by the Oath Commissioner. He has stated that he gave his papers after signing to his counsel and could not say when this application was filed. In his cross-examination, he has admitted that he was contesting election since 1951 and had been M.L.A. as also the State Minister. He has admitted that he was the General Secretary of the H.P. Congress Party since 1977. He has denied the suggestion that on the date of counting, Shri Ishwar Chand was on counting duty or general duty, on both the counting days. He has admitted that Shri Shamsher Singh was the A.R.O. He has also admitted that Shri T.L. Sharma, Superintending Engineer was the observer appointed by the Election Commission. He has stated that he had not made any complaint to Shri T.L. Sharma in writing about the counting though he had Verbally complained to him that injustice had been done to him. He has asserted that Shri T.L. Sharma told him that he had only the right to observe and not to intervene. He has also admitted that counting was done on 22nd May whereas recount was done on 23rd May but, that the counting on both the days was done during the night time. He has also admitted that doubtful votes were kept separate at the table. He has further admitted that such votes were taken to the A.R.O. for verification and scrutiny. He has, however, volunteered that it was there that his votes were not properly counted. He has further admitted that he filed applications for recounting on May 22 as also on 23rd May, 1982. He has admitted that most of his workers did not make any complaint in writing about the spurious ink and the wrong stamping on the ballot papers but that they had orally complained about it. He has further admitted that he had got information from his counting agents about the wrong counting and the approximate number of his valid votes that had been rejected. He, however, stated that he did not know nor was informed about the number of votes which were not properly counted in his favour on each table. He has emphasised that there were about 350 votes which were wrongly counted against him. According to the Petitioner, his counting agents had told him that the votes in his favour were not properly counted and that they told that the votes were not properly counted in his favour in every round and further that he had written the same on a paper, for his memory. He has also asserted that similarly he made the notes on May 23, 1982. The Petitioner, however, stated that he could not produce those notes as they were written on small papers, which were destroyed. He admitted that he had not noted the number of such ballot papers which were not correctly counted in his favour.

R.W. is Shri Kewal Krishan Gupta, Advocate. Inter alia, he has stated that at the time when the decision regarding the doubtful votes was given, he was feeling that the votes of the contesting Respondent (returned candidate) were wrongly being counted in favour of the Petitioner. He has further stated that a good number of votes which were to be counted in favour of there turned candidate were rejected. He has also deposed that after the counting was over, no one raised any objection that the counting was not correct. He has emphasised that no one including the Petitioner raised any objection regarding the counting and that rather the Petitioner and his supporters were happy as the votes of the returned candidate were counted in favour of the Petitioner and most of the votes which were to be counted in favour of the returned candidate were rejected. In his cross-examination, he has admitted that he was a counsel for the returned candidate and also appeared as a counsel on his behalf. He has asserted that he had objected regarding the wrong counting of votes but the A.R.O. told him that he was the person to decide the matter. According to the witness, 300/400 votes were such which were counted in favour of the Petitioner. He has further asserted that those 300/400 votes in fact should have been counted in favour of the returned candidate. The witness, however, pointed out that he could not state even approximately as to how many votes were such which were wrongly rejected and deserved to be counted in favour of the returned candidate. The witness further stated that such votes may be about 100. He has admitted that he is the President of the B.J.P. Chamba district. He denied the suggestion that there were some votes which were cast in favour of the Petitioner but were smudged by hand, at the table. He also could net say what was the total number of rejected votes. He also could not tell what were the grounds on which those votes were rejected. He denied the suggestion that 70/80 votes were such which were smudged by fingers and were rejected on that account. He also denied that on such ballot papers, the stamp was put on the symbol of the Petitioner. He further denied that the major portion of the seal was on the symbol of the Petitioner on about 200 ballot papers but those votes were rejected. The witness volunteered to say that in fact in the event of even a small portion of the seal being on the symbol of the Petitioner, the same was counted in his favour. The witness admitted that Shri K.S. Kapoor, Horticulture Officer was also an official member of the counting party. He also admitted that Shri R.L. Sud, D.F.O., Chamba was also a member of the counting party. The witness denied that counting was conducted during the night time, but again said that the counting was started from day time and continued up to 9.30 or 10.30 p.m. He also denied that the Petitioner and his agents raised objections regarding the wrong counting and their objections were not entertained. The witness showed his ignorance if any application was filed by the Petitioner for the change of counting staff but stated that he said so because no such application was filed in his presence. R.W. 5 is Shri Varinder Kumar, Advocate. It is stated by him that he acted as a counting agent of the returned candidate, at table No. 8. He has further stated that after counting of individual boxes, the doubtful votes were sent to the A.R.O. and that such votes were decided by the A.R.O. He has stated that in his presence nobody smudged any ballot paper with ink at his table and that no objection was raised at that table. He has further stated that Shri Sood, Assistant Conservator of Forests was not in charge of the table where he was working as a counting agent. In his cross-examination, inter alia, he has stated that he could not say the number of votes which were sent as doubtful votes to the A.R.O. He, however, admitted that some such votes were sent to the A.R.O. According to him, the doubtful votes were such on which the seal was put either on side or was dim. He stated that he did not remember that such doubtful votes were pointed out at the table where he was deputed, which were ink smudged. He admitted that he remained at the same table on both days of counting and that the official supervisory staff was also the same. He could not say what was the total number of rejected votes on 22nd May and 23rd May. R.W. 8 is Shri Shamsher Singh, Deputy Secretary (P.W.D.). He has stated that he was appointed as Assistant Returning Officer at Chamba. According to him, the counting of votes of Rajnagar constituency took place on May 22 and he conducted the counting of votes according to rules, instructions and law. He has proved certain documents pertaining to counting and the objections filed by the Petitioner. In his cross-examination, he has stated that he could not recollect at this time on what account the votes were rejected He also did not remember if there were about 80 votes which were smudged with ink. He also stated that he did not remember if there were about 120 such votes on which major portion of the seal was put on the symbol of the Petitioner but they were rejected. Similarly, it was stated by him that he did not remember that there were some votes on which the major portion of the seal was on the symbol of the Petitioner and the minor portion on the symbol of the returned candidate which were counted in favour of the returned candidate. He has denied that any application like Ex. P.4 was filed by the Petitioner and that he could not also say whether the contents thereof were correct or not. He has admitted that he was presently under suspension. He stated that he could not tell the details of the charges but stated that the allegations were something regarding the registration of certain vehicles. He has denied that there was a charge against him that during his working as a Treasury Officer, some articles were missing from the Treasury. R.W. 9 is Shri Mohan Lal returned candidate. He has stated that at the time of counting, the Petitioner was present throughout and that he had counting agents at all the tables. According to him, during the time when the counting was going on, no objection was raised by the Petitioner about the counting. It is further stated by him that similarly on May 23 when the recounting was going on, no objection was taken by the Petitioner or any of his representatives. He has pointed out that at the time when the counting result was being compiled, the Petitioner filed an application for recounting as he was not satisfied. He has admitted that after the result was compiled, it was pointed out that there had been some mistakes in the vertical totals of the votes and on that, account, the result was not declared on May 22,1982. He has denied that the Petitioner made any application on May 23, 1982 that the counting staff be changed. In his cross-examination, he has stated that he could not say on what ground(s) the votes were rejected on May 22,1982. According to him, the reasons for rejecting the ballot paper was given on the ballot paper itself. He has stated that he could not state the reason for which the votes were rejected on May 23, 1982. He has, however, pointed out that according to his personal assessment, about 500 votes which should have been counted in his favour have been counted in favour of the Petitioner. The witness stated that he did not remember if the election symbols of the Petitioner and the returned candidate were contiguous to each other.

The documentary and oral evidence as on record has been detailed earlier above and need not be reproduced over again. It is established on record that the Petitioner had been raising objections regarding the wrong counting of votes. He had raised oral objections and had also complained in writing. He also requested for the changing of the counting staff. The staff was, however, not changed. The Petitioner has made specific allegations regarding the wrongful rejection of his valid votes. It is specifically pointed out by him that out of 347 rejected votes, 180 were such which should have been counted in his favour. He has stated that 180 votes have been wrongly counted in favour of the returned candidate that had to be counted in his favour. From the statements of P.Ws. 65, 66, 67, 68, 73 and R.Ws. 4, 5, 8 and 9, whose evidence has been reproduced earlier above, it appears that the counting was not free from defects. In his statement P.W. 65 has stated that at table No. 1 during the recount there were about 20 or 22 votes which were of doubtful nature. He has asserted that on those ballot papers though the seal was put, but bore certain impression of ink of a colour different to one which was supplied at the time of voting According to him, the seal was on the symbol of the Petitioner. He has emphasised that the Petitioner had raised objection that his votes were not being correctly counted. He has further stated that 22/25 votes were such that stamp was put on the symbol of a candidate but some ink carrying the impression of a finger or having been spilt over was there. He has given the number of votes of different categories which were doubtful votes. P.W. 66 has stated that the Petitioner filed an application for changing certain members of the counting staff. P.W. 67 has stated that about 100 votes were such which should have been counted in favour of the Petitioner but were rejected. He has deposed that 50 votes were such which though deserved to be rejected but were counted in favour of the returned candidate. He has also asserted that out of 100 votes, 70 or 80 were such that the stamp had been put on the symbol of the Petitioner but there were finger prints in a different colour than the colour of the ink used for stamping. He has clarified that 25 or 30 out of the said votes were such that major portion of the seal appeared on the symbol of the Petitioner whereas minor on the symbol of Respondent Gian Chand. According to him, those votes should have been counted in favour of the Petitioner. He has corroborated the factum of the objection raised by the Petitioner about the wrong counting. Regarding the request for the change of the counting staff, the names of such persons have been given. P.W. 68, who was the counting agent of the Petitioner, has also given details of wrong counting and rejection of votes. The Petitioner as P.W. 73 has furnished the necessary details of the number of votes which were wrongly rejected or were wrongly counted in favour of the returned candidate, which according to the Petitioner, were liable to be counted in his favour. The Petitioner has also given the details of the steps that were taken by him to show that the counting was not proper. He has pointed out that there were about 180 such votes on which the major portion of the seal was on his symbol and a negligible part on the symbol of the returned candidate but such votes were counted in favour of the returned candidate. R.W. 4 Kewal Krishan Gupta has stated that he was feeling that the votes of the returned candidate were wrongly counted in favour of the Petitioner. He has even denied the fact that the Petitioner raised any objection regarding the counting. He has admitted that he was a counsel for the returned candidate. According to this witness, 300/400 votes were such which were counted in favour of the Petitioner though they had to be counted in favour of the returned candidate. He has also denied that 70/80 votes were such which were smudged by fingers. R.W. 5 Varinder Kumar has stated that in his presence nobody smudged any ballot paper with ink at his table. R.W.8 Shamsher Singh, who was acting as Assistant Returning Officer, has stated that he could not recollect on what account the votes were rejected. He has not been able to state If there were about 100 votes which were smudged with ink. He also did not recollect if there were about 120 such votes on which major portion of the seal was on the symbol of the Petitioner but were rejected. He could not say if there were some votes on which the major portion of the seal was on the symbol of the Petitioner and the minor portion on the symbol of the returned candidate but were counted in favour of the returned candidate. R.W. 9, the returned candidate, has stated that no objection was reised by the Petitioner regarding the counting. He, however, admitted that the Petitioner filed an application for recounting, as he was not satisfied. He has deposed that he could not say on what ground(s) the votes were rejected on May 22,1982. According to him, the reason for rejecting the ballot paper was given on the ballot paper itself. He could not even say the reason for which the votes were rejected on May 23, 1982. He has specifically pointed out that according to his personal assessment about 500 votes which should have been counted in his favour were counted in favour of the Petitioner.

The inevitable inference which can be drawn from the aforesaid evidence is that neither the Petitioner nor the returned candidate are satisfied with the counting. There are claims and counter claims made by them that the votes were not properly counted. In fact, the factum of wrong counting is corroborated by the returned candidate himself.

In my opinion, the substance of the decisions referred to above, is that an order for inspection of votes cannot be granted as a matter of routine but only under special circumstances. A Court is bound to consider the importance of secrecy of ballot papers and a fishing enquiry cannot be made. In order to justify the claim for the inspection of ballot papers, it is necessary that material facts are placed on record. At the same time, in a matter like allowing inspection of ballot papers no rigid rules can be laid down and it depends on the facts of each case. Since the primary aim of the courts is to render complete justice between the parties, no winning candidate should be afraid of recount.

I have minutely considered the documentary and oral evidence placed on record. As pointed out earlier above, the parties have made claims and counter claims regarding the mistakes in counting. The returned candidate has also filed a recriminatory petition and has, inter alia, stated that about 500 votes were such which were liable to be counted in his favour but were counted in favour of the petitioner. Consequently, bearing in iuind the principles laid down in the aforesaid deci sions and tesiing the same on the touch-stone of the allegations and the material placed on record, I am of the view that the counting of votes was not proper. As such, in order to render complete justice between the parties, it is necessary that the ins pection of the rejected votes and the votes cast in favour of the returncd candidate is allowed at the first stage After the ballot papers are so inspecL and counted, if it is found that the petitioner got more votes than the returnd candidate, the election of the returned candidate would be dcclarcd as void. In such a situation, the returned candidate, who has filed a recriminatory petition, such petition shall be allowed and the ballot papers cast in favour of the petitioner will be inspected and counted. The final result of the election petition and the recriminatory petition will depend on the result of the inspection and counting of such votes.

The question arises about the appointment of counting staff to inspect the votes and to work out the final result in the aforesaid manner.

It may be pointed out that in E.M.P. No. 21 of 1982, this Court passed an order on August 10,1984, that the packets containing the votes cast in favour of the Petitioner, the Respondent and all the rejected votes of 52-Rajnagar Constituency be produced in the Court in sealed covers. The said order has been complied with and the packets containing such votes are kept under the custody of the Registrar of this Court. Under the circumstances, the votes shall be inspected and counted by the Registrar of this Court and the final result would be worked out by him. The Registrar is allowed to take the assistance of such staff of this Court as he deems proper. The parties and the counsel for the parties shall be allowed to be present at the time of the inspection and counting of votes. The work of counting and the inspection of votes as also the final result would be worked out on or before October 18,1984. The Registrar shall intimate the exact time and dates of the aforesaid process to the learned Counsel for the parties in advance.

After the above directions are complied with, the final decision in the election petition will be announced soon thereafter.