ORDER
1. This order shall dispose of the election petition filed under Section 81 of the Representation of the People Act, 1951 by Shri Balmukund Singh Gautam who as per Ex.P-1 lost the Assembly Election of 201-Dhar (General) Constituency of M.P in the elections held in 2008 by one vote to respondent No. 1 namely Smt. Neena Vikram Verma.
2. In the election petition the petitioner has sought the following reliefs:-
1. that the Hon'ble Court may kindly hold that result of the election, in so far it concerns the returned candidate, the respondent no. 1 has been materially affected by improper reception, refusal or rejection of many votes or the reception of votes which are void,.
2. that the Hon'ble Court may kindly further hold that result of election in so far it concerns the returned candidate, the respondent no. 1, has been materially affected by non-compliance with the provisions of the Conduct of the Election Rules, 1961.
3. that the Hon'ble Court may kindly declare the election of the returned candidate i.e the respondent no. 1 from 201-Dhar (General) Assembly Constituency to be void and may kindly further declare declaration of result in form C copy on record as Annexure P-2 as inoperative, illegal and void.
4. that the Hon'ble Court may kindly hold that in fact the petitioner received a majority of the valid votes.
5. that the Hon'ble Court may kindly declare the petitioner to have been duly elected from 201-Dhar (General) Assembly Constituency and may kindly also grant such other relief(s) as may be thought fit in the facts and circumstances of the case.
6. cost of the petition may kindly be awarded to the petitioner.”
3. The basic ground to seek a declaration that election of the first respondent was void and the petitioner is entitled to be declared as successful candidate appears in paragraphs 8 and 9 of the election petition which are reproduced hereunder:-
“8. that the election of the respondent no. 1 is illegal, bad and void and is liable to to be so declared for the reason that the result of the election in so far as it concerns the returned candidate, the respondent no. 1 has been materially affected by improper reception of votes in favour of the respondent no. 1, improper refusal to receive valid votes polled in favour of the petitioner and improper rejection of votes polled in favour of the petitioner - a good number of void votes have been received in favour of the respondent no. 1 Eight postal ballots have been illegally taken away from the counting table and are not included in annexure P-1.
9. that there has been callous and rampant non-compliance with the provisions of the Representation of the Peoples Act 1951, the Conduct of Election Rules 1961 framed under the above Act and the Orders made thereunder by the Election Commission. The election of the respondent no. 1 squarely falls within the scope of Section 100(i)(d)(iii) and 100(i)(d)(iv) of the Representation of the People Act 1951.”
4. The details of the irregularities/illegalities have been specified by the petitioner in paragraph 10 of the election petition. Averments made in paragraph 10 sub-clause (a) to (e) are reproduced hereunder:-
“10(a) that the counting process commenced at 8.00 am. The ballot papers received through post were taken up first. The petitioner and other candidates were shocked to see that envelops containing ballot papers were lying loose. It may be mentioned incidentally that counting of other constituencies was also held in the same building at the same time. Employees were seen handling freely the postal ballots. Some of the ballot papers were seen being taken out of the counting hall telling that those belonged to other constituency and some ballot papers were seen being brought into the hall from outside telling that those were wrongly placed with other constituencies. There was utter confusion. There was no account maintained or if maintained, it was not shown by he Returning Officer even after being asked as to how many ballot papers were issued, to whom they were issued and how many of them were received back? There was no record or document to ascertain correct number of ballots received by post. The petitioner applied for certified copy of the record but the same has been denied. Certified copy of the application and order on the same is marked as Annexure P-3.
10(b) that the candidates and their agents noticed that a retired employee of the office of the Collector, by name Shri Vithal Rao Darwade, who was neither on the list of election staff nor an agent of any of the contesting candidates was allowed free access in the hall and was handling the envelops containing postal ballot papers. He was caught taking away a cover containing ballot paper. He was taken to the Returning Officer by Shri Anil Ninje Election Agent of the Respondent no. 13 and Shri Sanjay Bhidotia, Election Agent of Shri Dongre, respondent no. 11. It could not be known as to what happened to the ballot he had taken away but telling that the ballot belonged to other constituency Shri Darwade was allowed safe exit. That ballot was not seized from him for the reasons best known to the Returning Officer.
10(c) that the procedure prescribed for counting of the postal ballots is that the Retuning Officer shall open the cover ‘13C’ and first scrutinize the declaration in form ‘13A’ contained therein. If the declaration is not found, or has not been duly signed and attested or if the serial number of the ballot paper given on it differs from the number endorsed on the cover form ‘13B’, that cover shall not be opened-appropriate endorsement shall be made on it an the ballot paper shall stand rejected. The Returning Officer did not follow this mandatory procedure in all the cases and opened many covers in form 13B which ought to have not been opened and rejected. The Returning Officer did not make endorsements on these covers in presence of the counting agents of the candidates. He deferred it for the obvious reason to manage things to the order of the ruling party when needed. It is relevant to mention that the husband of respondent no. 1 is the Deputy Chief of the ruling party (BJP) at National level and wields enormous influence in the State administration. This position obtained on the date of counting.
10(d). that during the course of counting the ballot papers, it was noticed that in some of the cases declaration forms ‘13A’ were not attached, in some the declaration forms were not attested by competent authority or identity of the attesting-authority could not be established as simply the signature appeared without any description and in some others, ballot number was not mentioned in either the declaration form ‘13A’ or cover ‘A’. The objections raised by the counting agent of the petitioner were not received by the Returning Officer on all occasions. He was perceptibly indulging in favour of respondent no. 1. The petitioner for ready reference of the Hon'ble Court places on record as Annexure P-4 and P-5, the forms of declaration ‘13A’ and instructions ‘13D’ supplied t the elector who would opt to exercise his right of vote by postal ballots.
10(e) that the Returning Officer at the commencement of the counting did not disclose number of postal ballots issued, received or admitted to counting. No document was shown or laid on the counting table in this respect for information and verification of the candidates or their counting agents. This objection was raised by Shri Mujib Qureshi, counting agent of the petitioner at the commencement of the counting but no action was taken on it. The packets containing postal ballots were being handled freely and without any restriction. Some packets were removed out of hall by counting staff telling that those pertained to other Constituency? Box containing the postal ballots was neither shown in sealed condition to the candidates or their counting agents at the commencement of the counting nor was its seal opened before them. It was marked that some packets were already open when they were brought to the table. Then an application in writing was submitted, copy is marked as Annexure P-6. The Returning Officer did not give any receipt for the same. This has vitiated the counting process of postal ballots and the final tally.
5. It is the case of the petitioner that after the initial counting was over the petitioner won by two votes and result was also so announced. Form No. 20 was also prepared. However, by following illegal procedure postal ballots were recounted at the instance of respondent no. 1 and the result of victory of the petitioner was converted in his defeat by declaring respondent no. 1 as the winning candidate by one vote. It has been submitted that the entire process of recounting of votes was in violation of Rule 63 of the Conduct of Election Rules. The relevant pleadings in this regard are in para 10(f) to 10(l) of the election petition which are reproduced hereunder:-
“10(f) that the counting of the postal ballots was declared complete by about 10.30 a.m while the second round of counting by EVM was in progress. The R.O recorded the figures in ‘form 20’ and signed the same. The ballot papers were placed in separate packets and were sealed where the signatures of the Election Agent of the Respondent No. 1, Shri Anant Agrawal, the Counting Agent (R.O) of the petitioner, Shri Mujib Qureshi and one Shri Narendra Mandloi, Agent of some of the respondents who was present there were also taken. The papers duly sealed and signed were then lodged in a box. Form No. 20 was accordingly prepared, signed and the result of counting of postal ballots was announced by the Returning Officer as under:-
Respondent No. 1.. 461 votes
Petitioner. 161 votes
Respondent No. 2. 6 votes
Respondent No. 8. 1 vote
Declared invalid 205 votes
Total.. 834 votes
10(g) that the counting of the votes recorded in the EVMs commenced by about the same time as at the postal ballots. Here also the candidates and their counting agents noticed gross non-compliance of the provisions of election law by the Returning Officer and his staff. It is an established procedure that after each count is over on a table, the result is prepared by competing part II of form ‘17C’ and signature of candidates or their counting agents are taken. Corresponding entries are made in form 20 and results announced. The candidates or their agents present there take notice of the entries made in Form 17C. The Returning Officer avoided this procedure. The figures of votes polled candidate wise were not disclosed. The candidates or their counting agents were not allowed to note down any figure. It was told that the figures would be displayed on the notice board. It was surprising that hours after completion of a round, the figure of votes polled were held back. This gave rise to the public agitation. The R.O then announced results of some rounds of counting by EVMs. It would be relevant to mention here that by this time it was in the media that general trend was leaning in favour of the party in power i.e the Bhartiya Janta Party.
10(h) that the counting of votes by EVMs on all the tables was complete by about 4.30 in the evening and reports of all the tables were given to the ARO. Much time elapsed but neither official announcement of the figures was made nor was anything displayed on the notice board. No reason for delay was assigned. It remained no secret that the BJP candidate had lost to INC candidate. This attitude of the Returning Officer was stinking of some ill design. He was seen constantly talking on phone as if he was obtaining or awaiting instructions step in a and step out. The candidates and their agents raised objections in writing but acknowledgment receipt was not given by any officer. Copy of one such application submitted by the petitioner to the Returning Officer is Annexure P-7. There was good gathering of public outside the counting hall. It expressed annoyance by shouting slogans. The officers went inside the rooms. They came out after about an hour and announced the final score. It in relation to the petitioner and respondent no. 1 was as under:-
Respondent no. 1 petitioner
Votes by EVM… 50044 50346
Postal Ballots…. 461 161
Total 50505 50507
The Returning Officer announced that the petitioner has won the election by 2 votes. This fact appeared in the electronic media also (namely Sadhna Channel) on 8.12.2008 at about 5.00 p.m There was noticed yet another vital change in the tally. The figure of invalid postal ballots that was shown at 205 was changed to 197 without any explanation (kindly refer to para 10(f) above). The figure of total postal votes at 834 was now 826. One would not know as to what happened to the 8 ballot papers?
10(i) that an application was made to the returning Officer for recount of postal ballots on behalf of the Respondent no. 1, the BJP candidate. Copy of this application was not supplied to any contesting candidate or agent though the application was made in presence of the petitioner. The Returning Officer demonstrated partisan attitude in favour of the Respondent No. 1 and was inclined to grant the application. The petitioner resisted in futility the step of the R.O The Observer Shri Shampath it is unfortunate to submit also seemed to be colluding with the Returning Officer. The Returning Officer, to the knowledge of this petitioner, did not give any open hearing on the application for deciding the same and did not pass any formal order in writing much less he assigned any reason for allowing recount. The petitioner in order to ensure if any order was so passed, applied for certified copy of the application and order on the same but the same has been denied on the ground that these are kept in strong room. Certified copy of the order on grant of copy is marked as Annexure P.8 The action of the Returning Officer is in defence of the mandatory provisions of Rule 63 of the Conduct of Elections Rules, 1961.
10(j) that it is not known if the Returning Officer allowed a partial recount or full recount but all the bundles those were sealed under the signatures of the candidates or their counting agents were seen lying open and covers of ballot papers lying loose on the table.
10(k) that the Returning Officer did not comply at all with the procedure mandated in the Conduct of the Elections Rules 1961 particularly those in rule 63 read with rule 54A for recount. It was all done surreptitiously. Originally prepared result sheet in form 20 was not amended and amended result was not declared. The entire process has been manipulated in the way as to give an impression that the figures are not amended figures but are the original ones. The original form 20 is possibly lodged in some dark file. The petitioner applied for certified copy of form 20 that was originally prepared and later on amended but it has been denied. Certified copy of the order is Annexure P-9.
10(l) that the petitioner and with him all the counting agents and other candidates or their counting agent saw that the Returning Officer scattered the bundle containing rejected postal ballots, selected seven covers and allowed them as valid without assigning any reason for changing his earlier view. It may be recalled that there is required an endorsement of the R.O On each cover as he scrutinizes the same. One cannot make out as to what happened to the earlier note, was it there or not and what were the grounds of changing the earlier view? The R.O Opened on back of the petitioner and other counting agents the sealed bundle containing 161 postal ballots in favour of the petitioner. The bundle containing postal ballots in favour of the Respondent no. 1 was not opened at all. A protest letter, copy is marked as Annexure P-10 was lodged immediately but to no avail. The R.O Announced afresh that the respondent no. 1 secured 50510 votes and the petitioner secured 50509 votes. It was all illegal on the face of it. Most astonishing factor has been that the Observer though present did not object and gave his silent consent to the illegal act of the R.O The petitioner protested against the partisan, illegal and strange behaviour of the officers.”
6. Averments made in paragraphs 10(m), 10(n) and 10(o) are also reproduced hereunder:-
“10(m) that the petitioner sent complaint to the Election Commission New Delhi by fax on 8.12.2008 well before the result was finally declared. Copy is marked as Annexrure P-11. The authorities did not take any action. The petitioner and other persons of the public then started Dharna against the illegal action and partisan behaviour of the R.O The Returning Officer ultimately asked the petitioner to give application for recount against and it was so given with reference to the earlier objections. The petitioner had already submitted a written objection giving in details the particulars of dispute. The petitioner had mentioned the number of ballot papers those were defective. Copy of the objection is marked as Annexure P-12 and is made a part of the pleadings and therefore its contents and numbers of ballot papers are not repeated here. It was mentioned that one of the declarations was attested by a Thanedar who was neither a Presiding Officer nor a gazetted officer. Many declarations bore only signatures without giving details of the authority so it could not be ascertained if the authority was competent to attest the declaration. In some cases, declarations were not available-those votes were required to be rejected but it was not so done.
10(n) that there were reasons to believe that the R.O Was not impartial and that he was all out to ensure that the Respondent No. 1 was declared successful, the petitioner at 3.56 a.m sent objection by fax to the Election Commission, copy is marked as Annexure P-13. The application of the petitioner for recount was rejected at 5.15 a.m on 9.12.2008 mentioning that the recount if given shall infringe the secrecy of the ballot papers. No cogent and justifiable reason was assigned in the order. The objections though elaborate, cogent and pin-pointed, were not considered at all. The order is a non-speaking and illegal order. The R.O Did not take trouble to at least see those ballot papers, number where of were specifically mentioned. Copy of the order passed by the Retuning Officer is marked as Annexure P-14. The Returning Officer then finally declared the Respondent No. 1 as returned candidate on 9.12.2008
10(o) that the petitioner applied for grant of certified copy of form 20 that was originally prepared, amended copy of this form, copies of applications for recount submitted by or on behalf of the respondent no. 1 as also by this petitioner but they were not granted. Copy of the reply is Annexure P-15 whereby mentioning name application of respondent no. 1 for recount, the certified copy has been denied. The application for grant of copy was made on behalf of the petitioner by Shri Nilesh Sharma but the same has also been denied on frivolous grounds. Photocopy of the reply dated 2.1.2009 is Annexure P-16.”
7. The election petition has been contested by the returned candidate, respondent no. 1 who filed detailed written statement wherein she denied the averments made in the election petition specifically and the particular as stated in para 8, 9 and 10 of the petition. She has also taken the following preliminary objections:-
(i) The election petition filed by the petitioner does not contain a concise statement of the material facts on which the petitioner relies as is required to so stated under Section 83(1)(a) and (b) of the Representation of People Act, 1951.
(ii) The pleadings of the petitioner in paragraphs 8 and 9 are vague.
(iii) The contents of paragraph 10(a), 10(b) does not contain the name and particulars of other candidates though it has been mentioned in these paragraphs elections have been made not only against the petitioner but also against the other candidates. Similarly, in para 10(c) and 10(d), no specific averments have been made by the petitioner in respect of the allegations made in these paragraphs.
(iv) Though in paragraphs 10(e), 10(f), 10(g), 10(h), 10(i), 10(j), 10(k), 10(l) allegations have been levelled against the Election Commission, the Returning Officer and the observer appointed by the Election Commission, but the allegations are not specific. On merits vague denial has been made to the allegations made by the petitioner in the election petition.
(v) It has been submitted that since the petitioner has failed to state the material facts as contemplated under Section 83 of the Representation of People Act, the election petition is not maintainable.
(vi) An objection has also been taken against the non-joinder of necessary parties. It has been submitted that in view of the allegations made against the Election Commission, the Returning Officer and the Observer appointed by the Election Commission though are necessary and proper parties, but have not been impleaded as parties to the petition, which has not been done.
(vii) Similarly, allegations have been made against the husband of the returning candidate, but he has also not been impleaded as party.
(viii) It has also been submitted that signing and verification of the election petition is defective inasmuch as the verification of the pleadings is not in accordance with Order 6 Rule 15 of Code of Civil Procedure.
(ix) It is further submitted that even the affidavit annexed with the election petition is defective similarly even the documents annexed with the election petition contains defective verification, inasmuch as documents Annexures 1 to 16 are stated to have been attested as attested true copy which is not the requirement of law.
(x) It is also submitted that objections have not been taken during the process of counting of votes and even on that score, the election petition is not maintainable. It is further submitted that re-count is not permissible in law, inasmuch as contents for recount have not been fulfilled as laid down by Hon'ble the Supreme Court.
(xi) It is further submitted that the election petition is also not maintainable in view of the judgment of Hon'ble the Supreme Court delivered in the case of Bhabhi v. Sheo Govind(1976) 1 SCC 687, inasmuch as the preconditions for recount have not been satisfied by the petitioner.
(xii) The petition contains wrong facts regarding the residence of the petitioner, inasmuch as the address of the petitioner at the time of filing of the election petition is alleged to be House No. 190, Vilage Lebad Tehsil and district Dhar, which is not true and correct address of the petitioner inasmuch as for challenging the order of cancellation of the licence issued in favour of the petitioner, the petitioner filed writ petition no. 8323 of 2009 in which his address is shown as 35, Shradhashri Colony, Bargani Dham, Indore. Other instance has also been cited. It is submitted that giving a wrong address is furnishing an incorrect information. This also shows that the petitioner had not given his correct address while contesting the election.
(xiii) As already stated that on merits respondent has denied the averments made in the election petition. It has been specifically denied that there was no proper pleas in respect of the votes received improperly due to corrupt practices by the answering respondent or there was any improper reception or improper rejection of any vote in favour of the petitioner. The other averments in the election petition have been specifically denied. It has been denied that there was any violation of the provisions contained in the Representation of People Act and Conduct of Election Rules, 1961 or there was any corrupt practice followed by the Returning officer, Additional Returning Officer or other concerning officers. As regard making an application in prescribed copy, it is submitted that the first application was submitted by Shri N.M Sharma, Advocate on 12.01.2009 and not by the petitioner. Allegations made in paragraphs 10(a), 10(b), 10(c), 10(d), 10(e), 10(f), 10(g), 10(h), 10(i) have been vaguely denied.
8. Before filing of the written statement, the first respondent also filed an application under Order 7 Rule 11 CPC for rejecting the election petition vide I.A No. 6631/2009. However, the said application was rejected vide order dated 20.10.2010 Against the said order, the first respondent filed an SLP bearing No. 34259/2010 before the Hon'ble Supreme Court in which an order dated 5.01.2011 was passed which reads as under:-
“The Special leave petition is dismissed. However, it is clarified that the petitioner would be entitled to raise all objections in the written statement including the points dealt with by the High Court in the impugned judgment.”
9. It was only thereafter, written statement was filed. It is also a matter of record that the first respondent has also filed a recrimination petition under Section 97 of the Representation of People Act alleging corrupt practice on the part of the petitioner and with a prayer that in the event the election is declared void, then the recrimination petition may be tried and allowed in accordance with law.
10. With regard to the said recrimination petition, an application was filed by the petitioner under Order 7 Rule 11 C.P.C, which application was allowed by the learned Predecessor of this Court by a detailed order dated 14.07.2011 This order was challenged by the first respondent by filing an SLP before Hon'ble the Supreme Court. The said SLP was disposed of vide order dated 02.02.2012 The order reads as under:-
“Leave granted.
2. We have heard Mr. Ranjit Kumar, learned senior counsel for the appellant, and Dr. Abhishek Manu Singhvi, learned senior counsel for the respondent no. 1.
3. In course of the hearing in light of the discussion that took place, learned senior counsel for the parties agreed for the following order:
(i) The order dated July 14, 2011 passed by the High Court of Madhya Pradesh, Bench at Indore is set aside.
(ii) The Recrimination Petition filed by the present appellant (returned candidate) under Section 97 of the Representation of the People Act, 1951 is restored to the file of the Election Petition No. 11 of 2009.
(iii) The High Court is requested to hear and conclude the trial with regard to the challenge to the election of the returned candidate in Election Petition No. 11 of 2009-Balmukund Singh Gautam v. Smt. Neena Vikram Verma-as early as may be possible land in no case later than May 31, 2012.
(iv) In case the High Court declares the election of the returned candidate to be void, the High Court shall then proceed with the consideration of the Recrimination Petition and conclude the enquiry in respect thereof expeditiously and positively by August 31, 2012.
4. The parties shall fully co-operate with the High Court in expeditious conclusion of the trial and shall not seek unnecessary adjournments.
5. Question of law is kept open to be considered in appropriate case if such occasion arises.
6. The appeal is disposed of with no order as to costs.”
11. The time to dispose of the election petition was later on extended vide order dated 06.08.2012 This Court has taken almost day to day proceedings during the time which was available to the Court after lunch because before lunch, the Court was required to sit in Division Bench in terms of the roster prepared by Hon'ble the Chief Justice.
12. On the pleadings of the parties, following issues were framed:-
“1. Whether there was improper receipt of invalid postal ballots.
2. Whether there was improper rejection of valid postal ballots.
3. Whether due to improper reception of invalid postal ballots and improper rejection of valid postal ballets, the result of the election of constituency Dhar-201 has been materially affected.
4. Whether there was non-compliance of the provisions of the Representation of People Act and its Rules in counting of postal ballots due to which the result of election has been materially affected.
5. Whether on the request of the respondent No. 1 the counting of the postal ballots were ordered without notice to the other contesting candidates and without passing appropriate order in writing.
6. Whether original Form “20” was amended or replaced illegally.
7. Whether the recount of postal ballots should be ordered.
8. Whether the election of respondent no. 1 deserves to be set aside and petitioner deserves to be declared duly elected from Dhar-201 (General) Assembly Constituency.
9. Relief and cost.”
13. Parties then led their respective evidence. On behalf of the petitioner, PW-1 Balmukund Singh Gautam, PW-2 Antar Singh Solanki, Record Keeper and PW-3 Mujubuddin Qureshi, Counting Agent were examined.
14. On behalf of the respondent, RW-1 Shri Jitendra Anant Agrawal, Counting agent, RW-2 Dr. Sharad Vijayvargiya, Counting agent, RW-3 Mrs. Neena Verma, (Respondent no. 1) herself, RW-4 Anant Agrawal, Election Agent, RW-5 Harnarayan Gupta, A.R.O, RW-6 Chandresh Kumar Gupta, R.O, and RW-7 P.R Shampath, Election Observer were examined.
15. Parties have also relied upon various documents inasmuch as the petitioner has relied upon annexures annexed with the election petition, as well as the certified copies supplied to the petitioner by the Returning Officer. The documents which are available on record are:-
Documents Description Annexures
Ex.P/1 Final statement issued by RO in Form 20 dated 9.12.2008 P-1
Ex.P/2 Declaration in Form C dated 9.12.2008 P-2
Ex.P/3 Application submitted by the petitioner to the Returning Officer dated 8.12.2008 P-7
Ex.P/4 Certified copy of the order on grant of copy dated 13.01.2009 P-8
Ex.P/5 Protest letter dated 8.12.2008 P-10
Ex.P/6 Copy of the complaint sent to the Election Commission dated 8.12.2008 P-11
Ex.P-7 Copy of the objection where the petitioner had mentioned the number of defective ballot papers dated 8.12.2008 P-12
Ex.P-8 Objection sent by fax by the petitioner to the Election Commission dated 9.12.2008 P-13
Ex.P-9 Order passed by the Returning Officer rejecting the application of the petitioner for recount of postal ballots dated 9.12.08 P-14
Ex.P-10 Application for certified copy of Form 20 and list of documents in strong room dated 12.01.2009 P-9
Ex.P-12 Copy of objection by the petitioner demanding that the list of electors to whom postal ballots were issued be disclosed to the candidates dated 8.12.2008 P-6
Ex.P-13 Application and order dated 12.1.2009 on application for grant of certified copy P-3
Form of declaration 13A P-4
Form of Instructions 13D P-5
Reply whereby grant of certified copy has been refused dated 2.1.2009 P-15
Letter dated 2.1.2009 addressed to Nilesh Sharma by the RO P-16
Ex.PW 3.A Form 20 This document has been filed on behlaf of the petitioner during the course of leading the evidence and is being disputed by first respondent on account of authenticity and the mode of proof.
Ex.R-6/1 Letter dated 9.12.2008 by Observer to Dy. Election Commissioner regarding Special report on counting This document has been filed by RW-7 during the course of statement made in Court.
Ex.RW 6.D-1 and Panchnama Letter dated 28.06.2012 by Joint Collector to Anuvibhagiya Adhikari (Rajasv), Dhar
PW-2/1, PW-2/2, PW-2/3 Letters written by Neena Verma Proof of sending these documents have been questioned by the first respondent.
PW-4, 5, 6 Letters written by the petitioner to RO regarding objection for recounting, rejection of postal ballots and order by R.O regarding rejection of objection of the petitioner Proof of sending these documents have been questioned by the first respondent.
16. Shri A.M Mathur, learned senior counsel appearing for the petitioner submitted that in this case evidence has come on record that at about 3 P.M on 08.12.2008, the result of the election was announced when the petitioner won by two votes. Thereafter, the R.O and the observer under the instructions of the Government, who by that time secured majority seats in the Assembly, at the instance of the first respondent, recounted the postal ballots completely in violation of the Rules 63 of the Conduct of Election Rules, 1961. This was done so as to benefit the first respondent to declare her elected. In this process, 7 postal ballots were stated to have been taken out of the rejected postal ballots and therefrom, 5 were given to Smt. Neena Verma, the first respondent and 2 to the petitioner-Balmukund Singh Gautam. In this manner, the election result of the first respondent was materially affected who was later on declared as elected.
Petitioner has submitted that this has been done by the RO and the observer utterly in violation of Rule 63 of the Conduct of Elections Rules, 1961, inasmuch as neither the copy of application moved by the first respondent for recounting of postal ballots was supplied to the petitioner nor any reply thereof was sought for. It is submitted that without hearing all concerned and without passing any order in writing the recount of votes was done with a view to help the BJP candidate. It is stated that the election of the first respondent is illegal, bad and void for the reason that the result of the election in so far as the returned candidate respondent no. 1 has been materially affected by improper reception of votes in favour of the said respondent on account of callous rampant non-compliance of the Representation of People Act and thus the election of the returned candidate is liable to be declared void, in view of the provisions contained under Section 100(1)(d)(iii) and 100(1)(d)(iv) of the Representation of People Act.
17. It would be appropriate to take note of the relevant provisions of Representation of People Act and the Conduct of Election Rules, 1961 which have been referred to by the petitioner read as under:-
“100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if [the High Court] is of 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 a 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 or any nomination, or
(ii) by any corrupt practice committed in the interests 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 receipt of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of 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]
(2) If in the opinion of the [the High Court], a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice [****] but [the High Court] is satisfied-
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and [without the consent], of the candidate or his election agent;
[****] Clause (b) omitted by Act 58 of 1958.
(c) that the candidate and his election agent took all reasonable means for the preventing the commission of corrupt [****] practices at the election; and
(d) that in all other respects the election was free from any corrupt [***] practice on the part of the candidate or any of his agents then [the High Court] may decide that the election of the returned candidate is not void.”
Petitioner has also referred to Rule 63 which reads as under:-
“Rule 63. Re-count of votes.-(1) After the completion of the counting, the returning officer shall record in the result sheet in Form 20 of the total number of votes polled by each candidate and announce the same.
[(2) After such announcement has been made, a candidate or, in his absence, his election agent or any of the his counting agents may apply in writing to the returning officer to re-count the votes either wholly or in part stating the grounds on which he demands such re-count]
(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.
(4) Every decision of the returning officer under sub-rule (3) shall be in writing and contain the reasons therefor.
[(5) If the returning officer decides under sub-rule (3) to allow a re-count of the votes either wholly or in part, he shall-
(a) do the re-counting in accordance with [rule 54A,] rule 56 or rule 56A, as the case may be;
(b) amend the result sheet in Form 20 to the extent necessary after such re-count; and
(c) announce the amendments so made by him.]
(6) After the total number of votes polled by each candidate has been announced under sub-rule (1) or sub-rule (5), the returning officer shall complete and sign the result sheet in Form 20 and no application for a re-count shall be entertained thereafter:
Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right concerned by sub-rule (2).”
18. Learned counsel for the petitioner has also submitted that in view of the violation of Rule 63 and the petitioner having got highest number of votes at the time of initial counting as has also been specified by the Observer in his report sent to the Election Commission vide Ex.R-6/1 the petitioner is entitled to be declared as an elected person by virtue of provisions contained under Section 101 of the Representation of People Act which reads as under:-
“101. 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 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 havae obtained a majority of the valid votes,
[the High Court] shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.”
19. The petitioner has also relied upon the following judgments 2012 (3) Scale 107 Jitu Patnaik v. Sanatan, AIR 2010 SC 24 : Kattinokula Murali Krishna v. Veeramalla Koteswara Rao, AIR 2009 SC 187 Nagar Palika Nigam v. Krishi Upaj Mandi Samiti, JT 2009 (5) SC 104 V.K Ashokan v. Asstt. Excise Commnr.(2009) 4 SCC 590Annamalai University v. Secretary to Government Information and Tourism Department, (2007) 2 SCC 491Punjab Water Supply & Sewerage Board v. Ranjodh Singh, (2006) 8 SCC 433Director General of Doordarshan v. Anand Patwardhan, (2006) 4 SCC 542Gursewak Singh v. Avtar Singh, (2005) 2 SCC 271Nathi Devi v. Radha Devi Gupta, (2003) 5 SCC 650T.A Ahammed Kabeer v. A.A Azeez(2002) 5 SCC 568Prakash Khandre v. Dr. Vijay Kumar Khandre, (2001) 4 SCC 309UOI v. Rakesh Kumar, AIR 2001 SC 3689 Hari Shanker Jain v. Sonia Gandhi, AIR 1980 SC 206 N. Narayanan v. S. Semmalai AIR 1969 SC 604 Vishwanatha v. Konappa, AIR 1964 SC 1200 Jabar Singh v. Genda Lal , AIR 2008 NOC 168 (KAR) S. Prasanna Kumar v. Nagappa, AIR 1975 SC 2117 Bhabhi v. Sheo Govind, AIR 1986 SC 1253 Azhar Hussain v. Rajiv Gandhi, (2009) 7 SCC 432Securities and Exchange Board of India v. Saikala Associates Limited, (2008) 12 SCC 304Nagar Palika Nigam v. Krishi Upaj Mandi Samiti, AIR 2006 SC 3127 Kuldip Nayar v. Union of India, AIR 2004 SC 230 Sushil Kumar v. Rakesh Kumar., AIR 2012 SC 1563 Ashok Sadarangani v. Union of India(2011) 6 SCC 216CBI v. Keshub Mahindra, (2003) 6 SCC 452Jibontara Chatowar v. Sarbananda Sonowal, (2010) 7 SCC 530Mohd. Alauddin Khan v. Karam Thamarjit Singh, Jibontara Ghatowar v. Sarbananda Sonowal(2003) 6 SCC 452.
20. Both parties have filed their written submissions. In the written submissions on behalf of the petitioner emphasis has been laid on the following:-
“(1) Result of election as far as returned candidate is concerned, is materially affected by non-compliance of Rule 63 of the Conduct of Election Rules, 1961-Section 199(1)(d)(iv); and
(2) Result of election as far as returned candidate is concerned, is materially affected by improper reception of votes which are void-Section 100(1)(d)(iii).”
21. To substantiate the first submission, learned senior counsel has submitted that Rule 63 of the Conduct of Election Rules, 1961 has been violated in three ways i.e
(i) Application of Respondent no. 1-Smt. Neena Verma which was the basis of holding recount after initial counting did not contain reasons as required by Sub Rule (2) of Rule 63;
(ii) No copy of the application was provided by Respondent no. 1-Smt. Neena Verma to the petitioner and no reasonable opportunity of hearing was given to petitioner as required by Proviso to Rule 63;
(iii) The Returning Officer did not pass any order with reasons as required by Sub Rule (3) and (4) of Rule 63.
22. It has been submitted that the submissions of the petitioner are based upon pleadings of the petitioner in paragraphs 10(f), 10(g), 10(h), 10(i), 10(j), 10(k), and 10(l) (these paragraphs have been quoted above). It is also submitted that evidence has come on record which clearly establishes that the result of the election was announced after the initial counting of votes at about 3 p.m The evidence also goes to show that Form No. 20 was also prepared, but the same has been hided by the Returning Officer which fact has also been substantiated from his affidavit filed on record in terms of the order passed by this Court on 25.06.2012 It is further submitted that RW-6 Shri C.K Gupta, the then R.O has admitted that at the time of initial counting, the petitioner was ahead of the first respondent by two votes. The details were as under:-
Respondent no. 1 Petitioner
---------------------------------------------------
Votes by EVM 50044 50346
Postal Ballots 461 161
---------------------------------------------------
Total 50505 50507
23. Learned senior counsel for the petitioner has also submitted that Shri C.K Gupta, RW-6 in his deposition before the Court also admits that the result of the initial count was announced and Form 20 was prepared before the recount. Following paragraphs of the cross examination is relevant which is reproduced hereunder:-
“5. It is correct that after the results were compiled at the time of initial counting of postal ballots and EVM votes, Form No. 20 was prepared and result was announced………After preparation of Form No. 20 regarding postal ballots and Form No. 20 regarding EVM votes, we calculated the results in a separate Form No. 20 at about 3 p.m
6. We made the announcement of the result and at the same time we received the recount application.”
24. It may be observed here that evidence has come on record that Form 20 infact was prepared, but it was given by the R.O to his Reader. However, the said form has not been brought on record. Learned senior counsel for the petitioner has brought to my notice statement made by the R.O in the Court on July 4, 2012, when with a reference to the query raised regarding Form no. 20 (hand written), it was submitted that no such document was available to confirm whether it was prepared or not. As such R.O was directed to file an affidavit regarding this aspect of the matter. He filed an affidavit accordingly which is dated July 6, 2012 in this Court. The said affidavit reads as under:-
25. A perusal of Clause 3 and 4 reveals that such a form was prepared and was given in the custody of Shri Rajendra Chouhan, the Reader of the then R.O According to the petitioner, this supports the issue that form no. 20 was prepared as aforesaid, but it has been kept back by the R.O for reasons best known to him basically to help the returned candidate. This supports the plea of the petitioner that though the said form was prepared, but was kept hidden by the R.O probably at the behest of the then Government, so as to benefit the first respondent.
26. It is submitted that the affidavit of the R.O goes to show that all the three ingredients necessary for making an application for recount i.e (i) After compiling the result of the initial counting of postal ballots and EVM votes, Form No. 20 was prepared (ii) the result was announced, at about 3 p.m and (iii) thereafter application for recount was received and allowed, but without following Rule 63 of the Conduct of Election Rules.
27. It is submitted that in the statement of RO, it has also come that recount was allowed on an oral order passed by the Election Observer on the application moved by the respondent. In this regard reference has been made to order sheet dated 04.07.2012 which reads as under:-
“The Returning Officer who is present in Court submits that in so far as recounting is concerned, an oral order was passed by the Election Observer on the application moved by the respondent. However, there is no record regarding the order passed”
28. Learned senior counsel for the petitioner has also made reference to the statement of RW-7 P.R Shampath, the Observer, who has deposed that “the application was made by Smt. Neena Verma in Hindi, therefore, I could not understand it. I did not ask R.O to tell me the reasons, if any, for application given by Smt. Neena Verma even though it was in Hindi and I could not understand the contents of the said application.” It is submitted that this statement of P.R Shampath if read with his report sent to the Election Commissioner vide Ex.R-6/1 leaves no room for doubt that at the time when the application for recount was considered, the petitioner was leading by two votes.
29. RW-7 has further deposed that such application was moved by BJP candidate immediately after the initial counting with a request that the rejected postal ballots were required to be recounted. The application is Ex.PW 2/3.
30. The factum of recount being the issue was also stated by PW-1 Balmukund Singh Gautam. In para 5 of his examination he has stated as under:-
“Even on our asking, no copy was given and no hearing took place on the application and no order was passed on such an application and no copy of the order has been given to us though we were informed that the application has been given by Smt. Neena Verma.”
31. In the statement of Shri Balmukund Singh Gautam, it has also come that after initial counting of votes he was declared successful by two votes, when he asked for certificate, then he was told that an application has come for recount.
32. PW-3 Mujeebbudin Qureshi has also appeared for the petitioner. In para 5 of his examination he has deposed that
“Thereafter, R.O put the postal ballots on the table and out of the rejected lot of 7 postal ballots, 5 were given to Neena Verma and 2 were given to Balmukund Singh Gautam which is shown to have been received by Balmukund Singh Gautam. We took objections. The objectons ere not heard. Despite out strong protest to issue the certificate of winning the election in view of the earlier announcement of the R.O, we were not given certificate. ………Thereafter our objections were received. The objections were written by me and signed by Balmukund Singh Gautam. This is Ex.P-5.”
33. Shri P.R Shampath in his report Ex.R-6/1 has also stated:-
“On re-scrutiny of the rejected postal ballot papers 7 postal ballot papers were found valid out of which 5 went in favour of the BJP candidate and 2 in favour of the Congress Candidate……..”
34. It will be appropriate to take note of this report inasmuch as the report refers to initial counting and the result of the votes which shows that petitioner was ahead of Smt. Neena Verma at the time of initial counting and later on Smt. Neena Verma was granted 5 more votes when she won by two votes and thus the entire report is reproduced hereunder:-
“From
P.R Shampath, I.A.S
Observer, G-5075
201-Dhar Assembly Constituency, Dhar
Madhya Pradesh
To
Shri R. Balakrishnan, Dy. Election Commissioner, Nirvachan Sadan, Ashoka Road, New Delhi-110001.
Sir,
Subject:- 201 Dhar Assembly Constituency-Special report on counting-regarding.
In 201-Dhar A.C there are 190 polling stations. At the appointed day for counting on 08.12.08, a 8 A.M the postal ballot papers were opened and form 13A and 13B were segregated. 14 tables for arranged and at 8.30 A.M, polled EVMs were taken up for counting. There were 13 rounds and in the 14 round only 8 EVMs were taken up for counting of votes.
At the end of counting of all the votes polled in the EVMs, the total votes polled by all the 14 candidates were indicated below.
1. Neena Vikram Verma - 50044
2. Balmukund Singh Goutham - 50346
3. G.P Saket - 990
4. Ashok Maratha - 197
5. Nandram Parihar - 99
6. Havaldar Bhagvan Dubey - 66
7. Radheshyam Mukati - 90
8. Ishvardas Vaishnav - 627
9. Ghanshyam Ratansingh Solanki-89
10. Jamila Bee - 207
11. Mamtesh Mali - 198
12. Yogesh Dongare - 233
13. Rajesh Rathore - 818
14. Sanjay Bafana - 2063
Then the postal ballot papers votes were added to the respective candidate and the total votes polled were indicated below.
Total votes Postal Total polled in EVM Ballot
1. Neena Vikram Verma - 50044 461 50506
2. Balmukund Singh Goutham - 50346 161 50507
3. G.P Saket - 990 6 996
4. Ashok Maratha - 0
5. Nandram Parihar - 0
6. Havaldar Bhagvan Dubey - 0
7. Radheshyam Mukati - 0
8. Ishvardas Vaishnav - 627 1 628
9. Ghanshyam Ratansingh Solanki-0
10. Jamila Bee - 0
11. Mamtesh Mali - 0
12. Yogesh Dongare - 0
13. Rajesh Rathore - 0
14. Sanjay Bafana - 0
The B.J.P candidate immediately filed a petition that the rejected postal ballot has to be recounted. All the candidates did not raise any objections on the votes polled in the EVM.
Since the margin was very low between the two candidates B.J.P and Congress (only two votes), the request was accepted. In the presence of all the candidates and their election agents, the rejected postal ballot papers were taken for recounting. On re-scrutiny of the rejected postal ballot papers, it was found that there were seven valid postal ballot papers which were accepted by all the candidates. On counting the valid postal ballot papers, 5 votes went to B.J.P and 2 votes went to Congress. Again the margin between B.J.P and Congress was one vote only.
The Congress candidate strongly filed petition that all the valid postal ballot papers have to the recounted along with declaration form in 13A. There was a tense situation, and after heated argument, in order to have fair, free and transparent counting, a decision was taken to count all the valid postal ballot papers. A letter was sent to the political parties and recount was fixed at 9.30 P.M on 08.12.08 Both B.J.P and Indian National Congress candidates and their election agents were present. After heated arguments and counter arguments by both the political parties, the counting was started at 10.45 P.M Both the political parties raised many objections on the scrutiny of declaration form of 13A. However, the R.O of 201-Dhar Assembly constituency rejected all the objections since the objections were not raised during the segregation of form 13A and 13B while the counting of postal ballot papers which started at 8.00 A.M More over the objections were on some flimsy grounds and did not deserve any consideration. After rejecting all the objections of the political parties the postal ballot papers were sealed and kept in the strong room.
All the events of recounting were vediographed. The district Collector was present during the recounting of postal valid ballot papers. The Superintendent of police gave adequate police protection during the recounting period.
The final votes polled including postal ballot papers were given below.
Total votes polled in EVM Postal Ballot Total
1. Neena Vikram Verma - 50044 466 50510
2. Balmukund Singh Goutham - 50346 163 50509
3. G.P Saket - 990 6 996
4. Ashok Maratha - 197
5. Nandram Parihar - 99
6. Havaldar Bhagvan Dubey - 66
7. Radheshyam Mukati - 90
8. Ishvardas Vaishnav - 627 1 628
9. Ghanshyam Ratansingh Solanki-89
10. Jamila Bee - 207
11. Mamtesh Mali - 198
12. Yogesh Dongare - 233
13. Rajesh Rathore - 818
14. Sanjay Bafana - 2063
Since the R.O 201-Dhar Assembly Constituency has correctly carried out the counting I authorized the R.O to declare the result. The form 20, 21C and 21E are enclosed for the information and further action of the EC.I
Thanking you, Yours faithfully,
P.R Shampath”
35. Shri Shampath made a reference to instructions contained in the Hand Book of Returning Officers 2009 by making specific reference to para 26.8 which reads as under:-
“26.8 The Commission has decided that where the result of an election is going to be decided by difference of postal ballot received by the first two candidates, then there shall be mandatory and comprehensive recount of postal ballot papers, even through no candidate ask for it.”
36. It has been submitted that the aforesaid para 26.8 of the Instructions of the Hand Book of Returning Officers 2009 were not applicable to the Assembly Constituency Election held in 2008. It has come on record that objections were raised about the process of granting 5 votes to the BJP candidate and 2 votes to the congress candidate. The relevant portion is stated in para 6 of the statement of PW-1 Balmukund Singh Gautam and para 5 of the counting agent which reads as under:-
“6. when the recount of postal ballot papers was started and instead of counting, the R.O took out 7 ballot papers and gave 5 to Neena Verma and 2 to the petitioner. But the rest were not counted. We filed objection (P/5) which bears my signature.
5. Thereafter, R.O put the postal ballots on the table and out of the rejected lot of 7 postal ballots, 5 were given to Neena Verma and 2 were given to Balmukund Singh Gautam which is shown to have been received by Balmukund Singh Gautam. We took objections. The objectons ere not heard. Despite out strong protest to issue the certificate of winning the election in view of the earlier announcement of the R.O, we were not given certificate. ………Thereafter our objections were received. The objections were written by me and signed by Balmukund Singh Gautam. This is Ex.P-5. This is in my handwriting.”
37. No questions were asked from the petitioner to support the versions of the Returning Officer that the petitioner had given his consent of recount of the rejected ballots. It has been submitted that in this manner Rule 63 of the Conduct of Election Rules has been violated by the R.O and the Observer and thus there was a violation of Section 100(1)(d)(iv) of Representation of People Act. In this regard it has been submitted that
(i) After the initial postal ballot counting petitioner won by (two) votes. There was complete violation of Rule 63 inasmuch as the application (PW-3/3 of respondent no. 1) did not contain any ground fro recount. Copy of the application of recount of respondent no. 1 was not given to the petitioner and no hearing was afforded on the application of respondent no. 1. The worst is that no written order with reasons was passed on this application, but on the oral order either of R.O or Observer rejected ballot papers were counted after the result was announced. By this illegal process, the respondent no. 1 was made successful candidate though at the time of initial count, petitioner was successful candidate by two votes.
(ii) As per Rule 63(4), unless a written order is passed containing reasons, there could not be any recount of rejected ballot papers.
(iii) The R.O gets jurisdiction of recount only after he passes a written order with reasons. This condition precedent for exercise of jurisdiction of recount by a written order was absent, the R.O had no jurisdiction to recount the rejected ballot papers.
(iv) As a matter of fact, no oral order even was there because RW-6-R.O. says that oral order was passed by Observer and RW-7 says that the order was passed by the R.O”
38. Learned senior counsel for the petitioner while referring to the judgment of Hon'ble Supreme Court in the case of Kattinokkula Murali Krishna v. Veeramalla Koteswara Roa AIR 2010 SC 24 has also argued that merely because there was a narrow margin, it could not be a valid reason for directing recount of votes without following Rule 63 of the Conduct of Election Rules, 1961. Learned senior counsel for the petitioner has also referred to the instructions relied upon by the respondents which permits rechecking. Referring to the Hand Book of which reference to the R.O relied upon by the respondent in his written submissions, rechecking with reference to clause 27.9, referred in the written submission at page 131, it has been submitted that these instructions were not applicable in the present case for the simple reason that the counting had taken place under one roof and at one place.
39. In the light of the aforesaid submissions learned counsel for the petitioner submitted that in view of violations of provisions contained under Section 100(1)(d)(iii)(iv) of the Representation of People Act and Rule 63 of the Conduct of Election Rules, the election petition filed by the petitioner deserves to be allowed and the election of the returned candidate namely the first respondent has to be declared as void.
40. The learned senior counsel also submitted that in the light of the statement made by RW-6 and RW-7 and Ex.R 6/1, it has been established that the petitioner at the time of initial counting, had secured highest number of votes and thus was entitled to be declared elected. It is thus submitted that in the light of the provisions contained under Section 101 of the Representation of People Act, it has to be declared that infact it was the petitioner, who received majority of valid votes and thus, he is entitled to be declared as successful candidate in this election.
41. On the other hand, respondent no. 1 returned candidate, has submitted that the election petition itself is not maintainable for the reason that not only it suffers from supplying of material particulars as is required under Section 82 of the Representation of People Act. It has also been stated that no evidence has been led on behalf of the petitioner either about improper reception of votes or improper rejection of votes, which is the main plea taken by the petitioner. It is also submitted that there is no pleading as to how the Conduct of Election Rules were violated and how it effected the election material. It is also submitted that no evidence which is not in accordance with the pleadings of the petitioner can be looked into by this Court. It is further submitted that in this case, except for the recounting of votes, which was done after announcing of the result at 5 P.M, there was no recount as pleaded by the petitioner, inasmuch as by the time Smt. Neena Verma and Shri Balmukund Singh Gautam had given the applications for recounting/rechecking of votes at about 3 P.M, neither result of the election was announced, nor the details had been compiled, inasmuch as no Form 20 was prepared, before the final result was declared. It has been submitted that Form No. 20 was prepared only after declaration of final result on the next date in the morning which is Ex.P-1.
42. The counsel has also relied upon the following judgments: AIR 1995 SC 2417 Ajit Singh v. Bansi Singh, (2002) 3 SCC 457Mahendra Pal v. Ramdas, AIR 1973 SC 215 Smt. Sumitradevi v. Shri Sheoshankar, AIR 1993 Orissa 233 Smt. Nakka v. Shri Aurobindo, AIR 2004 SC 541 M. Chinnasamy v. K.C Palanisamy, 2003 SCW 2234 P.A Ahmed Kabeer v. A.A Aziz, 1995 Supp (3) SCC 318Charan Dass v. Surinder Kumar, 2012 SC 233 Mangani v. Bishnudeo Bhandari, AIR 1977 SC 231 Bashir Ahmeed v. Ghulam Quadir, (2011) 2 SCC 532Kalyankumar v. Ashutosh Agnihotri, AIR 1994 P&H 258 Santosh Singh v. Mohan Singh, AIR 1964 Orissa 8 Hari Prasad Deb… v. Bhanuganga Tribhuban Deb…., AIR 1960 614 Shri Gurbanta Singh v. Pyraram Jaggu, AIR 1960 Madras 85 M.A Muthiah Chettiar… v. Sa. Ganesan…., AIR 1978 Delhi 199 Bharat Bhushan… v. Ved Prakash…., (1975) 4 SCC 822Suresh Prasad Yadav v. Jaiprakash Mishra, AIR 2003 SC 304 Mahendra Pratap v. Krishan Pal, (1982) 1 SCC 691Jyoti Basu v. Debi Ghosal, AIR 1991 Gauhati 85 Amritlal Basumatari v. Abdul Muhib Mazumdar, 2010 AIR SCW 5629 Md. Alauddin Khan v. Karam Thamarjit Singh.
Learned counsel to support his plea that in the absence of pleadings and evidence in conformity to the pleadings, the election petition cannot be entertained what to talk of allowing the same. In this regard, relying upon a judgment of Delhi High Court delivered in the case of Bharat Bhushan… v. Ved Prakash…. AIR 1978 Delhi 199 it has been argued that no amount of evidence can be looked upon a plea which was never put forward.
43. Counsel has also made reference to another judgment delivered by the Apex Court in the case of T.A Ahammed Kabeer v. A.A Azeez 2003 AIR SCW 2234, wherein referring to the pleadings in an election petition it has been held as under:-
“26. The task before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of ballot must be zealously guarded. On account of a rigid following of these principles the election Courts are inclined to lean in favour of the returned candidates and place the onus of proof on the person challenging the result of election, insisting on strict compliance with the rules of pleadings and excluding such evidence from consideration as is in divergence with the pleadings. However, what has so developed as a rule of practice should not be unduly stretched; for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only he should represent the constituency who has been chosen by the majority of the electors. This is the purpose and object of the election law.”
44. In another judgment referred to by the respondent in the case of Mangani Lal Mandal v. Bishnu Deo Bhandari, 2012-Laws(SC)-2-33 wherein it has been held as under:-
“9. A reading of the above provision with Section 83 of the 1951 Act leaves no manner of doubt that where a returned candidate is alleged to be guilty of non-compliance with the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder and his election is sought to be declared void on such ground, it is essential for the election petitioner to aver by pleading material facts that the result of the election insofar as it concerned the returned candidate has been materially affected by such breach or non-observance. If the election petition goes to trial then the election petitioner has also to prove the charge of breach or non-compliance as well as establish that the result of the election has been materially affected. It is only on the basis of such pleading and proof that the Court may be in a position to form opinion and record a finding that breach or non-compliance with the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder has materially affected the result of the election before the election of the returned candidate could be declared void. A mere non-compliance or breach of the Constitution or the statutory provisions noticed above, by itself, does not result in invalidating the election of a returned candidate under Section 100(1)(d)(iv). The sine qua non for declaring the election of a returned candidate to be void on the ground under clause (iv) of Section 100(1)(d) is further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or non-observation or non-compliance with the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does not render the election of a returned candidate void Section 100(1) (d)(iv). For the election petitioner to succeed on such ground viz. Section 100(1)(d)(iv), he has not only to plead and prove the ground but also that the result of the election insofar as it concerned the returned candidate has been materially affected. The view that we have taken finds support from the three decisions of this Court in: (1) Jabar Singh v. Genda Lal ; (2) L.R Shivaramagowda v. T.M Chandrashekar; and (3) Uma Ballav Rath v. Maheshwar Mohanty (Smt.) ((1999) 3 SCC 357).
45. In the same context, reference to para 23 and 24 of the judgment delivered by Hon'ble Supreme Court in the case of Kalyan Kumar Gogoi v. Ashutosh Agnihotri(2011) 2 SCC 532 also becomes relevant. These paragraphs are reproduced hereunder:-
“23. It may be mentioned that here in this case non-compliance with the provisions of the Representation of the People Act, 1951 and the Elections Rules of 1961 was by the officers, who were in charge of the conduct of the election and not by the elected candidate. It is true that if clause (iv) is read in isolation, then one may be tempted to come to the conclusion that any non-compliance with the provisions of the Constitution or of the 1951 Act or any rules of the 1961 Rules or orders made under the Act would render the election of the returned candidate void, but one cannot forget the important fact that clause (d) begins with a rider, namely, that the result of the election, insofar as it concerns a returned candidate, must have been materially affected. This means that if it is not proved to the satisfaction of the Court that the result of the election insofar as it concerns a returned candidate has been materially affected, the election of the returned candidate would not be liable to be declared void notwithstanding non-compliance with the provisions of the Constitution or of the Act or of any rules of the 1961 Rules or orders made thereunder.
24. It is well to remember that this Court has laid down in several reported decisions that the election of a returned candidate should not normally be set aside unless there are cogent and convincing reasons. The success of a winning candidate at an election cannot be lightly interfered with. This is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else. That is why the scheme of Section 100 of the Act, especially clause (d) of subsection (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by sub-clauses (i) to (iv) of clause (d), the election of a returned candidate shall not be voided unless and until it is proved that the result of the election insofar as it concerns a returned candidate is materially affected. The volume of opinion expressed in judicial pronouncements preponderates in favour of the view that the burden of proving that the votes not cast would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate lies upon one who objects to the validity of the election. Therefore, the standard of proof to be adopted, while judging the question whether the result of the election insofar as it concerns a returned candidate is materially affected, would be proof beyond reasonable doubt or beyond the pale of doubt and not the test of proof as suggested by the learned counsel for the appellant.”
Thus, it has been emphasized on behalf of the respondent that in the absence of proper pleadings and corroborating evidence, the petitioner again succeeded in this case.
46. The respondent has denied that there was any improper reception of votes in favour of the answering respondent or that there was improper refusal to receive valid votes polled in favour of the petitioner and improper rejection of votes polled in favour of the petitioner. Regarding the allegation that void votes were received in favour of the answering respondent is absolutely wrong and his denied. Regarding allegation that 8 postal ballots were illegally taken away from the counting table and were not included, is false. Respondent has also denied that the recount of votes after the initial counting was improper and that an order passed for recounting of postal ballots was violative of Rule 63 of the Conduct of Election Rules, 1961. It has been submitted that no evidence has been led by the petitioner to corroborate his pleadings rather in the cross examination of PW-1 he has deposed that
Whereas, RW-1 Jitendra Agrawal categorically stated that
There is no cross examination to this Statement.
47. Same is the deposition of RW-2 Dr. Sharad Vijayvargiya, on whom there is no cross examination. Reference has also been made to the deposition of RW-4 Anant Agrawal, who has stated that:-
There is no cross examination to this Statement.
RW-5 Harinarayan Gupta, ARO has deposed that:
“Neither any valid vote was declared as invalid vote nor invalid vote was declared as valid vote.”
48. It has also been submitted that in the cross examination of Shri Balmukund Singh Gautam, there are omissions and contradictions in unequivocal terms. It is submitted that in the cross examination Shri Balmukund Singh Gautam PW-1 has stated:-
49. Reference has also been made to the statement of this witness to submit that this witness admits the procedure of counting of votes was in accordance with law. Portion of the statement referred to in the written submissions is reproduced hereunder:-
50. Reference has also been made to the statement of Mujeebuddin Qureshi PW-3 who has deposed that at the time of counting of postal ballot papers one bigger envelop was opened out of which declaration form was taken out and they were scrutinized. We took certain objection but the same was not accepted. No objection given by us in writing at that time.
Further said witness stated in next paragraph:-
It is correct that at the time when the bigger envelope was opened containing declaration form it was a sealed cover. The sealed cover was opened in my presence and in the presence of Balmukund Singh Gautam. In the sealed envelope containing declaration form, we also found that one another envelope containing ballet papers were there. It is correct that even the small envelope containing ballet papers were also sealed and the seal was opened in our presence.
There were two ballet papers which were without declaration form. We had taken oral objection even with respect to the aforesaid fact of there being two declaration forms less than the number of ballets. We also objected to the opening of the sealed envelope containing postal ballets. In my complaint, Ex.P-5 and P-7, wherein there is mention about shortcomings of declaration forms.
The oral objections concerning the declaration form and the shortcomings of the declaration form were taken prior to the announcement of the results on postal ballets around 11 A.M
The written objection was given by us about 4.30 P.M for the first time. We have given written objections prior to the announcement of the result.”
51. Respondent has also relied upon a portion of the statement of RW-3 Neena Verma wherein she has deposed as under:-
“The postal ballets were counted from 8 A.M on that date. At that time, besides myself, Shri Balmukund Singh Gautam, my election agent Anant Agrawal and election agent of Shri Balmukund Singh Gautam Shri N.M Sharma and other counting agents were present. At that time, when the counting began, I was standing near the RO table. Neither Shri Balmukund Singh Gautam nor election agent nor any one from outside raises any objection regarding the counting of postal ballets before the RO. Before counting of votes, the declaration forms regarding the postal ballets were shown to all concern and only after that being found proper that the counting of ballet papers started. Initially, I was told to have a lead over the other candidate at the time of initial counting.
The counting of the votes casted in EVM machine started at about 9.30 A.M at 14 different tables simultaneously. The counting results used to be displayed on a black board kept in front of the RO table, after each round of counting. The result was declared only on 9 December, 2008 in the morning at about 4.30 A.M”
52. The first respondent has also relied upon the statement made by RW-5, RW-6 and RW-7 to support their submissions that no irregularities have been committed during the process of counting and that the allegation made in paragraph 10(a) to 10(j) are all false. It is submitted that in view of the aforesaid oral submissions it was clear that due process was followed during counting and therefore, the contention of the petitioner by considering the application of Smt. Neena Verma for recount there was non-compliance of Rule 63 is not sustainable in law.
53. In this regard it has been submitted that when the counting of EVM was likely to complete at about 3.00 P.M first application was filed on behalf of the petitioner at 3.05 P.M ad thereafter at 3.15 P.M the application was filed on behalf of the respondent no. 1 and looking to those application returning officer in agreement to the observer decided to re-scrutiny and in the said process 7 unopened envelopes were found, which were opened in presence of the candidates and their agents and officials including Collector, Superintendent of Police and Observer. The said process was completed at about 4.30 P.M to 5.00 P.M Under these circumstances since till that time neither form no. 20 was filled in, nor result was announced as completed in Rule 63, the stage of recounting had not reached therefore, there was no occasion to comply with Rule 63. It is submitted that was done by the R.O for only rechecking of postal ballots which is permissible as per Rules and for which no objection was taken by the petitioner at the relevant time.
54. It is further submitted that as per deposition of the petitioner himself when Ex.P/3 and P/6 were submitted, result was not announced. Timing has been given effect between 3.05 P.M to 4.30 P.M and thus it is submitted that this was done by the RO and the Observer only to recheck the votes earlier counted and in that process, the Observer has decided to re-scrutinize the counting of postal ballots and in that process, having found the 7 unopened envelopes regarding postal ballots, which were opened in presence of the candidates and their agents and officials including Collector, Superintendent of Police and Observer, five votes which were casted in favour of the BJP candidate were given to the BJP Candidate and the two votes casted in favour of congress candidate were given to the Congress Candidate. The said process was completed at about 4.30 P.M to 5.00 P.M At that time no stage had occurred for recount of votes or any recounting took place. Thus the question of violating Rule 63 of the Conduct of Election Rules has arisen.
55. It has also been submitted that Form No. 20 was completed only after final counting was over and the result was announced. The said form is Ex.P-1. According to respondent no. 1, even the petitioner who appeared as PW-1 has not stated anything on this issue and has not disputed Ex.P-1. PW-3 has also not disputed Ex.P-1. As regard statement of PW-1 that Ex.PW-3.A, is the handwritten form of Form No. 20, the said document is forged and fabricated. PW-3 has deposed that a handwritten form was prepared when the counting of votes was in process, and that the said form was given to the petitioner, however, the petitioner has not annexed the said document alongwith the election petition. It is thus submitted that Ex.PW-3.A hand written form on which reliance has been placed cannot be taken note of. In the absence of preparing Form No. 20 and announcing of the final result, there have been no occasion for applying for recount, recount could not have been held and therefore, by the alleged recounting, on which petitioner has placed reliance, Rule 63 was not violated.
56. Reference has been made to the following paragraph of statement of PW-3 when he stated as under:-
“While counting votes in the election, a Form (Form-20) was also prepared in hand writing. The R.O announced the results after counting was done. As per the declaration of the R.O, which was announced between 4-4.30 P.M on 08.12.2008, 50,507 votes were casted on Balmukund Singh Gautam, while 50,505 votes were casted to Neena Verma. The hand written form was prepared by R.O On my asking, a copy of the form was supplied to me by the R.O I gave that copy to the petitioner. I had not kept a copy with me. I have seen photocopies of Form-20 in the file alongwith an application moved by the petitioner. This is running into 14 pages. It is the same copy which was supplied by the R.O Ex. PW 3.A (objected to being a photocopy and incapable unless original is shown) Original of the form has been signed by the R.O, in my presence. In the cross examination said witness stated I handed over form 20 as supplied by RO to Shri Balmukund Singh Gautam soon after the declaration of result, thereafter the document was not given back to me Shri Balmukund Singh Gautam, the petitioner. It is wrong to suggest that I have not handed over the handwritten form which has been filed in this Court alongwith the application by the petitioner, which is Exhibit PW-3A. which is incorrect. It is further incorrect to suggest that I have never handedover the aforesaid document to Shri Balmukund Singh Gautam. It is correct that I had not given any written objection to the RO/ARO either during the process of counting and process of recounting or for the irregularities what I have stated above. Said witness wants to demonstrate that Exh PW-3A was given by Returning Officer to him. However when returning officer came in the witness box, no question was put to him that whether said documents bears his signature or existence of the said document. Even otherwise said document is not on record as per law. Although in cross examination of RW-3 Smt. Neena Verma, on behalf of petitioner following cross examination was made. A. I put to you that Ex.PW3A bears the signature of Shri K.C Gupta at Point “A”.
Ans. I cannot say if the document exhibit PW3A bears signature of Shri C.K Gupta, RO at point “A” objected to by the counsel for the respondent regarding putting of this document being a photocopy.”
57. It is thus submitted that only one form i.e Form No. 20 Ex.P-1 was prepared when the final result was declared. No other form was prepared prior thereto. This also becomes clears as no cross examination has been put to R.O or to the Observer. It is also submitted that in this case neither there is any improper reception of votes in favour of the returned candidate or any refusal to receive valid votes in favour of the petitioner and thus no case is made out to declare the election of the petitioner void under Section 100(1)(d)(iii)(iv) of the Representation of People Act. It is thus submitted that issues no. 1 to 6 have to be decided in favour of the answering respondent and against the petitioner. Consequently, the petition may be dismissed.
58. As far as issue no. 7 it has been submitted that there is no prayer in the petition in relief clause and there is no evidence available on the record praying for recount of postal ballot papers. It is submitted that as per the preposition of law laid down by the Hon'ble Court in various judgments order of recount cannot be made only on asking of the party unless the case for recount is made out on the basis of cogent and reliable evidence and all situation the secrecy of the ballot is required to be maintained. It has also been submitted that by all inquiries made by this Court on number of occasions, neither of the parties have agreed for recounting. In fact, the petitioner never wanted to have recount. As such, this issue has to be decided against the petitioner.
59. Regarding issue no. 8, the answering respondent has submitted that in terms of the order passed by Hon'ble the Supreme Court, even if the Court come to a conclusion that election of the returned candidate is declared to be void, the prayer of the petitioner to declare him as successful candidate cannot be considered unless and until the recrimination petition filed by the respondent under Section 97 of the Representation of People Act is tried. The first respondent has also relied upon two judgments delivered by the Apex Court in the following cases i.e (1) Jabar Singh v. Genda Lal AIR 1964 SC 1200 (1) and (2) T.A Ahammed Kabeer v. A.A Azeez 2003 AIR SCW 2234.
60. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and have perused the record and the law laid down in various judgments cited from both sides. I have already referred to the provisions of the Representation of People Act in the judgment itself including Rule 63 of the Conduct of Election Rules, 1961. My issue wise findings are as under:-
Issue no. 2
In so far as this issue is concerned, neither there is any pleadings nor any evidence has been led by the petitioner, in support of this issue and therefore this issue is decided against the petitioner.
Issues no. 1, 3, 4, 5 and 6
All these issues are interconnected and are being disposed of jointly.
61. In this case, there is specific pleading on behalf of the petitioner that there had been improper reception of votes in favour of the first respondent which has materially affected the result of election in favour of the first respondent. There are also pleadings that recount ordered by the RO after the initial counting when not only the result of the election was announced, but Form 20 was also prepared without hearing both sides and without passing written order was contrary to Rule 63 of the Conduct of Election Rules, 1961. The evidence has also been led by the petitioner.
62. As regard the violation of Rule 63 of the Conduct of Election Rules, 1961 there is a specific pleadings on behalf of the petitioner that by resorting illegal recount, 5 votes were received in favour of the returned candidate which materially affected the result of first respondent in her favour and because of that the returned candidate was declared elected. It is submitted that on account of violation of the Conduct of Election Rules, 1961, as aforesaid, the election of the returned candidate is required to be declared void, while the petitioner is required to be declared elected candidate as he has received majority votes at the time of initial counting and was leading with two votes. Reliance has been placed on the provisions contained under Section 101 of the Representation of People Act, 1951
63. To appreciate the stand of the petitioner as well as the stand of the respondent, It would be appropriate to take note of the pleadings of the petitioner and the reply given by the first respondent in a chart form. The relevant paragraphs for the purpose of appreciating the pleading of the petitioner that there was improper reception of votes in favour of the first respondent and there was violation of the Rules which requires declaration of the election of the first respondent void have been mentioned in paragraphs 10(f), 10(g), 10(h), 10(i), 10(j), 10(k), and 10(l) which otherwise have been quoted by me in paragraph 5 of the judgment. To reiterate the averments made in these paragraphs properly alongwith the answer given by the first respondent in their written statement in chart form is given below:-
10(f) that the counting of the postal ballots was declared complete by about 10.30 a.m while the second round of counting by EVM was in progress. The R.O recorded the figures in ‘form 20’ and signed the same. The ballot papers were placed in separate packets and were sealed where the signatures of the Election Agent of the Respondent No. 1, Shri Anant Agrawal, the Counting Agent (R.O) of the petitioner, Shri Mujib Qureshi and one Shri Narendra Mandloi, Agent of some of the respondents who was present there were also taken. The papers duly sealed and signed were then lodged in a box. Form No. 20 was accordingly prepared, signed and the result of counting of postal ballots was announced by the Returning Officer as under:-
Respondent No. 1.. 461 votes
Petitioner. 161 votes
Respondent No. 2. 6 votes
Respondent No. 8. 1 vote
Declared invalid 205 votes
Total. 834 votes
10(f) The contends of para 10(f) of the petition are a matter of record to the extent that counting of the postal ballot was declared to be complete by around 10.30 A.M Form No. 20 was filled up and signed as per the procedure prescribed under Rule 56(7) of the Conduct of Election Rules, 1961. However, counting of ballots was announced by the Returning Officer as per Annexure P/1 and not as shown by the petitioner in this paragraph.
10(g) that the counting of the votes recorded in the EVMs commenced by about the same time as at the postal ballots. Here also the candidates and their counting agents noticed gross non-compliance of the provisions of election law by the Returning Officer and his staff. It is an established procedure that after each count is over on a table, the result is prepared by competing part II of form ‘17C’ and signature of candidates or their counting agents are taken. Corresponding entries are made in form 20 and results announced. The candidates or their agents present there take notice of the entries made in Form 17C. The Returning Officer avoided this procedure. The figures of votes polled candidate wise were not disclosed. The candidates or their counting agents were not allowed to note down any figure. It was told that the figures would be displayed on the notice board. It was surprising that hours after completion of a round, the figure of votes polled were held back. This gave rise to the public agitation. The R.O then announced results of some rounds of counting by EVMs. It would be relevant to mention here that by this time it was in the media that general trend was leaning in favour of the party in power i.e the Bhartiya Janta Party.
10(g) The contents of para 10(g) are not correct. The counting of votes for the postal ballot was taken up separately land only thereafter the counting by electronic voting machine was taken into consideration. The figures of postal ballots as well as ballots received from electronic voting machine were duly announced for the information of all concerned in the presence of representatives or agents of the candidates. There was no restriction by the Returning Officer against noting down the counting by agents of the parties present. The rest of the allegations are denied for want of knowledge.
10(h) that the counting of votes by EVMs on all the tables was complete by about 4.30 in the evening and reports of all the tables were given to the ARO. Much time elapsed but neither official announcement of the figures was made nor was anything displayed on the notice board. No reason for delay was assigned. It remained no secret that the BJP candidate had lost to INC candidate. This attitude of the Returning Officer was stinking of some ill design. He was seen constantly talking on phone as if he was obtaining or awaiting instructions step in a and step out. The candidates and their agents raised objections in writing but acknowledgment receipt was not given by any officer. Copy of one such application submitted by the petitioner to the Returning Officer is Annexure P-7. There was good gathering of public outside the counting hall. It expressed annoyance by shouting slogans. The officers went inside the rooms. They came out after about an hour and announced the final score. It in relation to the petitioner and respondent no. 1 was as under:-
Respt. No. 1 petitioner
Votes by 50044 50346 EVM
Postal
Ballots 461 161
--------------------------
Total 50505 50507
The Returning Officer announced that the petitioner has won the election by 2 votes. This fact appeared in the electronic media also (namely Sadhna Channel) on 8.12.2008 at about 5.00 p.m There was noticed yet another vital change in the tally. The figure of invalid postal ballots that was shown at 205 was changed to 197 without any explanation (kindly refer to para 10(f) above). The figure of total postal votes at 834 was now 826. One would not know as to what happened to the 8 ballot papers?
10(h) The contents of para 10(h) of the petition are denied to the extent that the official announcement of the figure was not made nor displayed on the notice board. The announcement was in progress throughout, without any interruption, but there was no objection from any of the candidates in this regard. The objection by the petitioner was an afterthought.
10(i) that an application was made to the returning Officer for recount of postal ballots on behalf of the Respondent no. 1, the BJP candidate. Copy of this application was not supplied to any contesting candidate or agent though the application was made in presence of the petitioner. The Returning Officer demonstrated partisan attitude in favour of the Respondent No. 1 and was inclined to grant the application. The petitioner resisted in futility the step of the R.O The Observer Shri Shampath it is unfortunate to submit also seemed to be colluding with the Returning Officer. The Returning Officer, to the knowledge of this petitioner, did not give any open hearing on the application for deciding the same and did not pass any formal order in writing much less he assigned any reason for allowing recount. The petitioner in order to ensure if any order was so passed, applied for certified copy of the application and order on the same but the same has been denied on the ground that these are kept in strong room. Certified copy of the order on grant of copy is marked as Annexure P.8 The action of the Returning Officer is in defence of the mandatory provisions of Rule 63 of the Conduct of Elections Rules, 1961.
10(i) The contents of para 10(i) are a matter of record. It is respectfully submitted that a copy of the application was duly supplied to every agent of the contesting candidate present at the site. As such, the allegation of the petitioner in this regard is not correct. It is denied that the Returning Officer demonstrated partisan attitude towards the answering respondent. It is denied that the Returning Officer colluded with agents of the answering respondent. Since there was no objection from any party, there was no question of any open hearing. The rest of the contents of para 10(i) are denied for want of knowledge.
10(j) that it is not known if the Returning Officer allowed a partial recount or full recount but all the bundles those were sealed under the signatures of the candidates or their counting agents were seen lying open and covers of ballot papers lying loose on the table.
10(j) The contents of para 10(j) of the election petition are correct to the extent that there was recounting of votes in the presence of the parties. The rest of the contents of para 10(j) are denied for want of knowledge.
10(k) that the Returning Officer did not comply at all with the procedure mandated in the Conduct of the Elections Rules 1961 particularly those in rule 63 read with rule 54A for recount. It was all done surreptitiously. Originally prepared result sheet in form 20 was not amended and amended result was not declared. The entire process has been manipulated in the way as to give an impression that the figures are not amended figures but are the original ones. The original form 20 is possibly lodged in some dark file. The petitioner applied for certified copy of form 20 that was originally prepared and later on amended but it has been denied. Certified copy of the order is Annexure P-9.
10(k) The contents of para 10(k) of the election petition are not correct and are denied. The Returning Officer had performed his duties diligently, faithfully, as a responsible officer and in a judicious way. There was no violation of any rule, regulation or procedure by him. It is denied that Form 20 was ever amened. It is denied that the petitioner applied for a certified copy of the application. The application Annexure P/9 was submitted by Shri N.M Sharma, Advocate and not be petitioner on 12.01.2009
10(l) that the petitioner and with him all the counting agents and other candidates or their counting agent saw that the Returning Officer scattered the bundle containing rejected postal ballots, selected seven covers and allowed them as valid without assigning any reason for changing his earlier view. It may be recalled that there is required an endorsement of the R.O On each cover as he scrutinizes the same. One cannot make out as to what happened to the earlier note, was it there or not and what were the grounds of changing the earlier view? The R.O Opened on back of the petitioner and other counting agents the sealed bundle containing 161 postal ballots in favour of the petitioner. The bundle containing postal ballots in favour of the Respondent no. 1 was not opened at all. A protest letter, copy is marked as Annexure P-10 was lodged immediately but to no avail. The R.O Announced afresh that the respondent no. 1 secured 50510 votes and the petitioner secured 50509 votes. It was all illegal on the face of it. Most astonishing factor has been that the Observer though present did not object and gave his silent consent to the illegal act of the R.O The petitioner protested against the partisan, illegal and strange behaviour of the officers.
10(l) The allegations made by the petitioner in para 10(l) of the petition are not correct and are far from truth. The allegations are based on conjectures and surmises. The petitioner has not impleaded the Returning Officer as a party to the petition and, therefore, the allegations against him cannot be considered and the election petition is liable to be dismissed. Since the petitioner could not succeed and lost the election, objections have been raised after the counting was complete vide Annexure P/10. They are an afterthought, an abuse of the process of law and not maintainable. The petitioner had asked for deciding the objections for recounting first, whereas the first application Annexure P/6 for recounting the postal ballot and electronic voting machine was submitted by the petitioner himself at around 3:05 p.m on 08.01.2009 The statements made in these two applications are contradictory to each other.
64. A perusal of the aforesaid chart goes to show that specific pleas were taken on behalf of the petitioner that soon after the initial counting was over, the R.O and the observer resorted to recount of the votes at the instance of the first respondent, but without following Rule 63 of the Conduct of Election Rules, 1961, inasmuch as despite admission that an application was moved by the first respondent for recount on which a reference has been made by me in paragraph 25 above. R.O without complying with the provisions contained under Rule 63 of the Conduct of Election Rules, 1961, took a decision to recount the postal ballots and turned the tables, inasmuch as, out of 7 rejected postal ballots, 5 were given to the B.J.P candidate and two to the Congress candidate and thereby the victory of the congress candidate by two votes converted in a defeat by one vote.
65. I have already quoted Rule 63 of the Conduct of Election Rules, 1961 in para 16 above. A perusal of this Rule shows that it is obligatory on the part of the R.O to record in the result sheet in Form NO. 20, the total number of votes polled by each candidate after the completion of counting and announce the result. It is thereafter i.e after such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agents can apply to the R.O to recount the votes either wholly or in part stating the grounds on which he demands recount. On receipt of such an application, the R.O shall decide the matter and can allow the application in whole or in part or reject it if it appears to be frivolous or false. Every decision of the R.O in terms of Rule 63(4) has to be in writing and with reasons. Applying the aforesaid principle to the facts of this case, it is apparent that there was violation of Rule 63 when recount was ordered contrary to the mandate of the aforesaid Rule and in that process, 5 additional votes were accounted in favour of first respondent and in this manner, her election was materially affected and the same is required to be declared void in the light of Section 100(1)(d)(iii)(iv) of the Representation of People Act which provisions have been already quoted in this judgment above.
66. It will be appropriate to refer to the submission of the respondent in this case that recount was not ordered infact it was only a rechecking which was done. However, this stand of the learned senior counsel for the respondent is not as per the evidence which has already come on record, inasmuch as it has come in the statement of RW-6, RO and RW-7, the election observer that when the initial counting was completed, the petitioner was ahead of the first respondent by two votes. It has also come in the statement of Shri C.K Gupta that even Form No. 20 was prepared at the time of completion of initial counting and that result of the election was also announced and it is only thereafter, recount of the postal ballots was conducted. This fact is also fortified by the report sent by the observer to the Election Commission Ex.R-6/1 quoted in para 33 above clearly goes to show that soon after the initial counting, when the Congress candidate was leading by two votes, the BJP candidate immediately filed an application that the rejected postal ballots has to be recounted.
67. There is however no dispute that such request was accepted without passing any order on the application moved by Smt. Neena Verma, first respondent. Admittedly, there is nothing on record to show that such an order was passed by resorting to the procedure framed under Rule 63 of the Conduct of Election Rules, 1961.
68. At this juncture, it would be appropriate to take note of the judgment of the Apex Court in in the case of Jibontara Chatowar v. Sarbananda Sonowal(2003) 6 SCC 452 to which judgment the reliance has also been placed upon by the petitioner. The basic issue involved in that case is the issue of illegal recounting. In para 8 of the judgment, the Apex Court quoted Rule 63 of the Conduct of Election Rules to which a reference has also been made by me in para 16 above of the judgment. Further observations made by the Apex Court in this case are as under:-
“The rule clearly spells out a statutory obligation on the Returning Officer on an application being made under sub-rule (2) to decide the matter. He may allow the application in whole or in part depending on his satisfaction as to the availability of the grounds in support of the prayer for re-count and the genuineness and reasonability thereof, which opinion shall, of course, be formed prima facie depending on the facts and circumstances of the given case. Recording of evidence or holding of an enquiry on the application is not required or provided for by the rule. The application may be rejected to the extent to which it appears to him to be frivolous or unreasonable. The expressions “shall decide the matter”, “may allow the application” and “if it appears to him” employed in the language of sub-rule (3) cast an obligation on the Returning Officer to take a decision on the prayer for re-count depending on the formation of prima facie opinion in a reasonable manner and as dictated by the facts and circumstances of a given case which would obviously defy definition or formation of any straitjacket formula. The application may be allowed to the extent to which the prayer may be genuine and reasonable. It may be rejected to the extent to which it may be found frivolous or unreasonable. In any case, a decision has to be taken. The decision has to be in writing and has to contain the reasons for the decision. There was a clear breach of Rule 63 in the present case.”
69. I have already made a reference to the statement of the witnesses relied upon by both the sides. It is clear that the recount has been permitted by the RO and the election observer without following the provisions of Rule 63 of the Conduct of Election Rules, 1961.
70. At this juncture, it would also be appropriate to take note of the statement of respondent herself, who appeared as RW-3. She has deposed:-
“Initially, soon after EVM counting was going to be over, Shri Balmukund Singh Gautam gave one application to the RO, as was intimated to me by the RO. I was informed that the application was made for the purpose of seeking recount/rechecking of the votes, then I orally informed the RO that in the morning, I had also taken an objection regarding non-opening of some ballets, to the concerned officer, therefore on the asking of RO, I also gave application for recounting/rechecking of the ballets. Such application was given in writing even by me.
Shri Balmukund Singh Gautam had given an application for recounting of all the votes i.e the votes casted by way of EVM as well as other votes by recounting/rechecking thereon. At that time, observer Mr. Sampat was also presnet. The objections were intimated to Mr. Sampat by RO because Mr. Sampat was not knowing Hindi and thereafter on asking us and with my consent and with the consent of Shri Balmukund Singh Gautam, the observer told RO to act upon the applications.
After recounting the results delivered by EVM then the RO kept all the postal ballets on the table and recounted the votes. The envelopes were also rechecked. Out of the envelopes, few envelopes which had not been opened were also located. Those envelopes were 7 in number. Those were taken in the custody by the observer. This whole exercise was over by 4.30 P.M
Out of the 7 postal ballets, which had not been opened earlier, the RO opened envelopes one by one and thereafter, after showing the declaration forms to all concerned, nobody took any objection. The ballets which were opened out of 7 envelopes and out of them two were casted in favour of Shri Balmukund Singh Gautam and 5 in my favour. Neither at the time of initial counting nor at the time when the 7 postal ballets were taken and counted, not even a single postal ballets was found to be invalid.
After the recount/rechecking, the observer told us that I Neena Verma was proceeding ahead with one vote and that now the RO started the process of declaring my result. This was about 5 P.M I was not given the certificate of winning candidate because at that time Shri Balmukund Singh Gautam and his supporters started raising voices, and even started abusing. They also started snatching papers from the RO table. On their advice, I left the counting hall because they were apprehending danger to my security.”
71. Her statement clearly goes to show that the first recount after the results were initially declared was on the basis of an application moved by her, but without following Rule 63 of the Conduct of Election Rules, 1961. From the statement of Shri C.K Gupta, R.O and the observer, it is also clear that it was the congress candidate who was leading by two votes i.e after the recount took place, the then result was reversed as now it was the BJP candidate who led by one vote. It is submitted that perusal of the application goes to show that it contains no reason.
Application Ex. PW 2/3 is also reproduced hereunder:-
72. Regarding preparation of Form No. 20 after the declaration of initial result to a specific query raised in her cross examination, Smt. Neena Verma stated that as under:-
It is incorrect. In reply to para 10 of the written statement it has been written. It is correct that while replying to para 10(f) of the election petition, in para 28 of the written statement I stated as under:-
“The contents of para 10(f) of the petition are a matter of record to the extent that counting of the postal ballet was declared to be complete by around 10.30 A.M Form No. 20 was filled up and signed as per the procedure prescribed under Rule 56(7) of the Conduct of Election Rules, 1961. However, counting of ballets was announced by the Returning Officer as per Annexure P/1 and not as shown by the petitioner in this paragraph.”
The first respondent in her cross examination also stated that:
“It is incorrect that after initial counting of postal ballets I received 461 votes and Shri Balmukund Singh Gautam received only 161 votes. In the morning before beginning of EVM counting I had informed the RO that some postal ballets had not been counted. I do not know to whom exactly I said so. I had not given any complaint in writing in this regard. I had not made a specific objection either to observer or to the RO because, they were on round. I am not aware if after the counting of postal ballets was over observer and RO came to the table. I am not remembering if I met observer and RO between 8.30-10.30 on 8.12.2008 I do not remember if in the reply to the election petition I had made a mention about the non-counting of few postal ballets in the morning.”
73. However, in the written statement there is nothing that in the morning itself, the first respondent bought to the notice of the RO and the observer that there was any postal ballots which remained uncounted.
After the initial counting it was the recount of postal ballots and not simply rechecking as is the submission of the learned senior counsel for the respondent, in corroborated by the statement of RW-5 Harinarayan Gupta, who was the ARO reads as under:-
“Both the congress as well as the BJP candidates had given application for recounting around 3 P.M Firstly it was given by congress candidate. Thereafter, it was given by the BJP candidate. RO had discussed those applications with the Observer and thereafter a decision was taken to recount the ballots. Within half an hour of submitting the application, recount had started. Recount was taken of both EVM as well as of postal ballots. In the EVM votes, just totaling was re-checked. Postal ballots were actually counted. Neither any valid vote was declared as invalid vote nor invalid vote was declared as valid vote. During the course of aforesaid recount, 7 ballots were found which were not opened and counted. With respect to 7 ballots, the declaration forms were also taken out and they were found valid. Thereafter, the ballot papers were also counted one by one. Out of these 7 ballots 5 were casted in favour of BJP candidate and 2 were casted in favour of congress candidate. Because of that, BJP candidate was headed by one vote than his rival congress candidate.
This was not acceptable to congress candidate and therefore, he and his associates started creating halla-gulla. They requested the observer to have a second recount. I am not aware if any fresh application for recount was given, but at about 8.30 P.M, I was asked by the RO to be ready for recount.”
74. It would also be appropriate to take note of the evidence file regarding preparation of Form No. 20 available at page 62:
“Q. I put it to you that after counting of postal ballots was over, Form No. 20 was filled up? Ans. No Form No. 20 was filled up at that time. It is incorrect to suggest that I am telling a lie.
It is correct to suggest that after the first round of EVM counting, Form-20 was prepared. I am also not aware if such a Form No. 20 was filled up by Mr. Dabbar.”
75. I have already referred to the statement of Shri C.K Gupta, R.O, who very categorically stated that Form No. 20 was prepared before first recount. In his affidavit dated July 6, 2012 filed in this Court pursuant to the directions issued by this Court vide order dated July 4, 2012 wherein he has clearly admitted that such Form No. 20 was prepared before the first recount of votes. He has also admitted that at that time even the election result was announced.
76. Thus, there are pleadings and evidence has also been led that after the initial counting, election results were announced and Form No. 20 was prepared. In such circumstances, if an application for recount was made, there was a necessity to follow Rule 63 of the Conduct of Election Rules, 1961 by the RO as well as the election observer. However, admittedly, this has not been done. It has come in the report of the election observer as also the statement of witnesses examined on behalf of the petitioner that by the time the initial count of the votes was over, the Congress candidate was leading by two votes. Thus, the procedure as adopted by the RO therefore materially affected the result of the election in favour of the first respondent, where recounting has been done, when 5 postal ballots out of the rejected ballots was given to the first respondent and 2 postal ballots to the Congress candidate. It is not in dispute that the recount was done without passing appropriate order in writing Form no. 20 was prepared according to Shri C.K Gupta, RW-6, even at the time of initial counting has not come to the light and thus possibility of such form being hidden by the RO for the reasons best known to him also support the petitioner with respect to issue no. 6 as it will have to be presumed that the said form was amended or replaced illegally. Anything done thereafter including the declaration of result as has been submitted by the counsel for the respondent vide Ex.P-1 is of no consequence.
77. In view of the aforesaid, issues no. 1, 3, 4, 5 and 6 are decided in favour of the petitioner and against the respondent, returned candidate i.e first respondent namely Smt. Neena Vikram Verma and her election for the Assembly Constituency of the State of Madhya Pradesh in the Elections held in the year 2008 from 201-Dhar (General) Constituency of M.P is declared void. Necessary intimation in this regard be sent by the Registry of this Court to the concerned Authority.
Issue no. 7
78. With regard to issue no. 7, none of the parties wanted recount. Infact the petitioner though prayed for recount of votes, but during the course of arguments learned senior counsel has stated that there is no need to pass any order on recount in this case. The issue is disposed of accordingly.
Issue no. 8 and 9
79. In view of my findings given in respect of Issues no. 1, 3, 4, 5 and 6 above, the prayer made by the petitioner and a declaration that the result of the first respondent, who is the returned candidate is void, in view of the prayer made by the petitioner that he having secured majority votes at the time of initial counting is required to be declared elected in terms of Section 101 of the Representation of People Act is to be considered. In this regard, I have no hesitation to hold that in view of the statements of RW-6 and RW-7 and the report of RW-7, EX. R6/1, it is apparent that the petitioner received the majority votes. However, the relief of declaring him as elected candidate for the Constituency will have to be considered in the light of the recrimination petition filed by the first respondent under Section 97 of the Representation of People Act, 1951.
80. According to the petitioner in view of the language of Section 101 of the Representation of People Act, he is required to be declared elected. It has been submitted that the language of Section 101 of the Act is required to be given plain and un-ambiguous meaning with respect to the consequence. The counsel in this regard has also referred to a judgment delivered in the case of Nathi Devi v. Radha Devi Gupta reported in (2005) 2 SCC 271. Relevant paragraphs are 13 and 15 are reproduced hereunder:-
“13. The interpretative function of the Court is to discover the true legislative intent. It is trite that in interpreting a statute the Court must, if the words are clear, plain, unambiguous and reasonably susceptible to only one meaning, give to the words that meaning, irrespective of the consequences. Those words must be expounded in their natural and ordinary sense. When a language is plain and unambiguous and admits of only one meaning no question of construction of statute arises, for the Act speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the Court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional.
15. It is well settled that literal interpretation should be given to a statute if the same does not lead to an absurdity.
81. The second judgment cited on behalf of the petitioner is in the case of Nagar Palika Nigam v. Krishi Lupaj Mandi Samiti reported in AIR 2009 SC 187. In paras 20 and 21 of the said judgment, it has been held as under:-
“20. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner Of Sales Tax, M.P v. Popular Trading Company, Ujjain., Ujjain ((2000) 5 SCC 515). The legislative casus omissus cannot be supplied by judicial interpretative process.
21. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. “An intention to produce an unreasonable result”, said Danackwerts, L.J in Artemiou v. Procopiou (1966 1 QB 878), “is not to be imputed to a statute if there is some other construction available”. Where to apply words literally would “defeat the obvious intention of the legislature and produce a wholly unreasonable result” we must “do some violence to the words” and so achieve that obvious” intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also observed: “this is not a new problem, though our standard of drafting is such that it rarely emerges”.
82. Another judgment cited on behalf of the petitioner in this regard is the judgment of CBI v. Keshub Mahindra(2011) 6 SCC 216. In this case, regarding interpretation of statutes, the Hon'ble Supreme Court has held as under:-
“11.No decision by any court, this Court not excluded, can be read in a manner as to nullify the express provisions of an Act or the Code and the 1996 judgment never intended to do so. In the 1996 judgment, this Court was at pains to make it absolutely clear that its findings were based on materials gathered in the investigation and brought before the Court till that stage. At every place in the judgment where the Court records the finding or makes an observation in regard to the appropriate charge against the accused, it qualifies the finding or the observation by saying “on the materials produced by the prosecution for framing charge”. “At this stage”, is a kind of a constant refrain in that judgment. The 1996 judgment was rendered at the stage of Sections 209/228/240 of the Code and we are completely unable to see how the judgment can be read to say that it removed from the Code Sections 323, 216, 386, 397, 399, 401, etc. or denuded a competent court of the powers under those provisions. In our view, on the basis of the material on record, it is wrong to assume that the 1996 judgment is a fetter against the proper exercise of powers by a court of competent jurisdiction under the relevant provisions of the Code.”
83. According to the respondent, the relief of declaring the petitioner as elected candidate cannot be granted in view of pendency of petition filed by her under 97 of the Representation of People Act, 1951 which according to the first respondent was filed within time. She has also stated that not only that she has filed a recrimination petition, there is also direction of Hon'ble the Supreme Court while disposing of the SLP filed by her against the order rejecting her recrimination petition under Order 7 Rule 11 CPC that “in case the High Court declares the election of the returned candidate to be void, the High Court shall then proceed with the consideration of the Recrimination Petition and conclude the enquiry in respect thereof expeditiously and positively by August 31, 2012”. The time was further extended vide order dated August 6, 2012.
84. It has also been submitted that in view of the aforesaid, the second relief cannot be granted to the petitioner and the decision on this issue will have to be deferred till the recrimination petition is tried and disposed of.
85. Respondent has relied upon the judgment delivered by the Apex Court in the case of Jabar Singh v. Genda Lal AIR 1964 SC 1200 (1) which is a Constitution Bench judgment wherein the situation which arises when there is a prayer made by the election petitioner for declaration in his favour under Section 101 of the Representation of People Act and there is also a petition filed on behalf of the respondent within limitation under Section 97 of the Representation of People Act which has been disposed of. In this case it has been held as under:
“6. In dealing with the question raised by Mr. Kapoor before us, it is necessary to refer to the provisions of the Act in regard to the presentation of election petitions and the prayers that the petitioners can make therein. Section 81 provides that an election petition calling in question any election on one or more of the grounds specified in sub-section (1) of S. 100 and S. 101 may be presented to the Election Commission by any candidate or any elector within the time specified by the said Section. It is thus clear that when a person presents an election petition, it is open to him to challenge the election of the returned candidate under S. 100(1) and claim a declaration that the returned candidate's election is void. He can also claim a further declaration that he himself or any other candidate has been duly elected. In other words, if the election petition contents itself with claiming a simple declaration that the election of the returned candidate should be declared to be void, the petition falls under S. 100 and the Election Tribunal can either grant the said declaration in which case the petition is allowed, or refuse to grant it in which case the petition is dismissed. It is also possible that the election petition may claim two reliefs, one under Section 100(1), and the other under S. 101. In this category of cases, the Tribunal first decides the question as to whether the election of the returned candidate is valid or not, and if it is found that the said election is void, it makes a declaration to that effect and then deals with the further question whether the petitioner himself or some other person can be said to have been duly elected. The scope of the enquiry which the Tribunal has to hold in such cases would obviously depend upon the nature of the reliefs claimed by the petition.”
86. This judgment came up for consideration in the case of T.A Ahammed Kabeer v. A.A Azeez AIR 2003 SC 2234. In this judgment, the Apex Court has upheld the view taken in Jabar Singh's case qua recrimination petition. The discussion has been summarized in para 33 of the judgment:-
“33. We have already stated that the rigorous rule propounded by the Constitution Bench in Jabar Singh's case has met with criticism in some of the subsequent decisions of this Court though by Benches of lesser coram and an attempt at seeking reconsideration of the majority opinion in Jabar Singh's case has so far proved to be abortive. The view of the law taken by the Constitution Bench in Jabar Singh's case is binding on us. Analysing the majority opinion in Jabar Singh's case and the view taken in several decisions of this Court, referred to hereinabove, we sum up the law as under:-
(1) In an election petition wherein the limited relief sought for is the declaration that the election of returned candidate is void on the ground under Section 100(1)(d)(iii) of the Act, the scope of enquiry shall remain confined to two questions: (a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate. In such a case an enquiry cannot be held into and the election petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or (b) any votes were improperly refused or rejected in regard to the returned candidate.
(2) A recrimination by the returned candidate or any other party can be filed under Section 97(1) in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected.
(3) For the purpose of enabling an enquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the election Court shall acquire jurisdiction to do so only on the two conditions being satisfied: (i) the election petition seeks a declaration that any candidate other than returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) the recrimination petition under Section 97(1) is filed.
(4) A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfil within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Sections 117 and 118 of the Act.
(5) The bar on enquiry enacted by Section 97 read with Section 100(1)(d)(iii) of the Act is attracted when the validity of the votes is to be gone into and adjudged or in other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into. The bar is not attracted to a case where it is merely a question of correct counting of the votes without entering into adjudication as to propriety, impropriety or validity of acceptance, rejection or reception of any vote. In other words, where on a recount the election Judge finds the result of recount to be different from the one arrived at by the returning officer or when the election Judge finds that there was an error of counting the bar is not attracted because the Court in a pure and simple counting carried out by it or under its directions is not adjudicating upon any issue as to improper reception, refusal or rejection of any vote or the reception of any vote which is void but is performing mechanical process of counting or recounting by placing the vote at the place where it ought to have been placed. A case of error in counting would fall within the purview of sub-clause (iv), and not sub-clause (iii) of Clause (d) of sub-section (1) of Section 100 of the Act.”
87. In view of the aforesaid judgments and the direction of Hon'ble Supreme Court, it will be necessary to decide the Recrimination Petition before the second relief is granted to the petitioner. Accordingly, while holding that the election of the first respondent from 201-Dhar (General) Constituency is void, and holding that the petitioner secured highest number of votes after the initial counting was over, further declaration that he be declared as elected candidate is deferred till the recrimination petition is heard and decided by this Court. I also make it clear that the second prayer of the petitioner would be subject to the decision on the recrimination petition by this Court. There shall be no orders as to costs.
C.C as per rules.
Representation of People Act, 1951