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Mohan Lal Vs. Rakesh Meghwal and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberS.B. Election Petition No. 7 of 1994
Judge
Reported in1998(1)WLN389
AppellantMohan Lal
RespondentRakesh Meghwal and ors.
DispositionPetition Dismissed
Cases ReferredIn Shri Satyanarain Dudhani v. Uday Kumar Singh and Ors.
Excerpt:
(a)representation of the people act, 1951 - sections 33(2), 100(1)(d)(i)--election petition--nomination form--compliance of section 33(2)--if a certificate given by the competent authority specifying the caste of a candidate is appended with the nomination form, it would be sufficient compliance of section 33(2)--in such a case, non-mention of specific caste at the appropriate place in the nomination form itself would not render it invalid--further, the election-petitioner himself admitted that the non-petitioner was known to him and he belonged to 'meghwal' caste, which is a scheduled caste--in such a situation, improper acceptance of respondent's nomination paper could not be said to have materially affected the result of his election--further still, respondent filed more than one.....v.s. kokje, j.1. the petitioner who was the official candidate of the indian national congress in the last assembly elections held in the year 1993 from the parbatsar assembly constituency no. 197 of the rajasthan legislative assembly has challenged the election of respondent no. 1 who was the official candidate of the bhartiya janta party at that election.2. the election petition raised three grounds for setting aside the election. firstly it was alleged that the election of respondent no. 1 was liable to be declared void on account of improper acceptance of nomination paper of respondent no. 1 on account of which result of the election was materially affected. secondly, it was alleged that the election of respondent no. 1 was materially affected on account of improper rejection of votes.....
Judgment:

V.S. Kokje, J.

1. The petitioner who was the official candidate of the Indian National Congress in the last assembly elections held in the year 1993 from the Parbatsar Assembly Constituency No. 197 of the Rajasthan Legislative Assembly has challenged the election of respondent No. 1 who was the official candidate of the Bhartiya Janta Party at that election.

2. The election petition raised three grounds for setting aside the election. Firstly it was alleged that the election of respondent No. 1 was liable to be declared void on account of improper acceptance of nomination paper of respondent No. 1 on account of which result of the election was materially affected. Secondly, it was alleged that the election of respondent No. 1 was materially affected on account of improper rejection of votes of the petitioner and improper inclusion of votes cast in favour of the petitioner in the number of votes cast in favour of respondents No. 1 and 2, Thirdly, it was alleged that the election of respondent No. 1 was liable to be declared void on account of commission of corrupt practices by the respondent No. 1 or by his consent and by the Bhartiya Janta Party with his consent.

3. So far as the ground relating to corrupt practices is concerned, by an Order dated December 16, 1994 passed on the preliminary objections raised by the respondent No. 1 in this case, it was held that for want of proper affidavit the election petition deserved to be rejected so far as it related to the ground of the commission of corrupt practices. Thus, only two grounds have survived for determination in this petition, on which two issues were framed as follows:

(1) Whether the Returning officer improperly accepted the nomination paper of respondent No. 1, and

(2) Whether the petitioner is entitled to recounting of votes on the grounds mentioned in Paragraph-8 of the petition.

4. The following facts relating to the election are not disputed:

5. The Parbatsar Legislative Assembly Constituency No. 197 of Rajasthan Legislative Assembly was a reserved Constituency for the members of Scheduled Castes. Petitioner Mohan Lal was the official candidate of the Indian National Congress, respondent No. 1 Rakesh Meghwal was the official candidate of Bhartiya Janta Party, respondent No. 2 Mohan Ram Meghwal was the official candidate of Doordarshi Party, respondent No. 3 Sukh Ram Meghwal was the official candidate of Janta Dal, respondent No. 4 Smt. Pushpa Devi, respondent No. 5 Ram Pal, respondent No. 6 Ram Swaroop and respondent No. 7 Sukna Ram were the independent candidates who remained in the field after the last date for withdrawal and who contested the election. October 19, 1993 was the last date for filing nominations. October 20, 1993 was the date of scrutiny of nominations, October 22, 1993 was the last date for withdrawal of candidature, November 11, 1993 was the date of polling and November 27, 1993 was the date on which counting of ballet papers had to commence.

6. It was also not disputed that Shri D.N. Pandey, Sub Divisional Officer Parbatsar was the Returning Officer at the election, that the counting of ballet papers took place on November 27/28, 1993 at the I.T.I. Hall, Nagour and the result of the election was declared on November 28, 1993 declaring the respondent No. 1 elected by a margin of 42 votes over the petitioner.

7. It is also not disputed that in the ballot papers, the name of respondent No. 2 Mohan Ram Meghwal of Doordarshi Party appeared at No. 2 and that of petitioner Mohan Lal of the Indian National Congress appeared immediately below him at No. 3 and that of Rakesh Meghwal respondent No. 1 of Bhartiya Janta Party appeared immediately below him at No. 4.

8. It is also undisputed that as per the result of the counting, the candidates polled the number of votes shown against their names herein below:

1. Mohan Lal, petitioner 39,783

2. Rakesh Meghwal, respondent No. 1 39,825

3. Mohan Ram Meghwal 895

4. Sukha Ram Meghwal 1,423

5. Smt. Pushpa Devi 149

6. Ram Pal 1,023

7. Ram Swaroop Meghwal 169

8. Sukna Ram Meghwal 1,077

Rejected Ballots 1,481

TOTAL 85, 825

Result: Respondent No. 1 defeated the Petitioner by a margin of 42 votes.

9. After having set out the factual background, let me now consider the case Issuewise:

Issue No. 1: Whether the Returning Officer Improperly Accepted the Nomination Papers of Respondent No. 1.

10. Reference to the ground relating to improper acceptance of nomination papers is made in Paragraphs 9 and 12 of the petition. They are reproduced hereunder:

PARA: 9: That the material facts and the grounds in regard to improper acceptance of the nomination paper of respondent No. 1 Shri Rakesh Meghwal are set out hereunder:

The respondent No. 1 Shri Rakesh Meghwal submitted his nomination paper on 13.10.1993. In the nomination paper Shri Rakesh Meghwal did not declare specifying the particular caste of which he is a member. A certified copy of the nomination paper of Shri Rakesh Meghwal is submitted herewith and marked as Annex. 3. However, the Returning Officer has accepted the nomination paper of Shri Rakesh Meghwal although it did not contain the declaration of Shri Rakesh Meghwal specifying the particular caste of which he is a member.

PARA: 12: That the election of respondent No. 1 is also liable to be declared void on account of improper acceptance of nomination paper of respondent No. 1 on account of which the result of election has been materially affected for the reasons stated hereinabove.

11. In reply to Paragraph-9, it was contended by respondent No. 1 that along with the Nomination Form a caste certificate dated October 13, 1993 issued by the Tehsildar was also filed as an appendix to the Nomination Form. According to the respondent No. 1, if there was any defect in the Form in as much as if it did not disclose the specific caste 'Meghwal' to which respondent No. 1 belonged, that defect stood cured by the enclosure of the caste certificate with the Form. It was also submitted that the nomination Form, even without that caste certificate, was a valid nomination Form as the signature of the petitioner contained the caste name 'Meghwal'. It was also contended that no objection was raised by the petitioner or any other person during the scrutiny of nomination papers to the validity of the nomination Form of respondent No. 1 and as such the objection was an after thought.

12. Section 100(1)(d)(i) of the Representation of the People Act, 1951 (hereinafter to be called as 'the Act') supplies the improper acceptance of a nomination Form as a ground for declaring an election to be void. It reads as under:

Section. 100 Grounds for declaring election to be void.-(1) Subject to the provisions of Sub-section (2) if the High Court is opinion-

(a) ... ... ... ...

(b) ... ... ... ...

(c) ... ... ... ...

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

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

(ii) ... ... ... ...

(iii) ... ... ... ...

(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.

13. Section 32 of the Act provides that any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and the Act.

14. Section 33 of the Act provides that nomination papers may be filed between eleven o'clock in the forenoon and three o'clock in the afternoon, on or before the last date appointed for the purpose and be delivered to the returning officer at the place specified. A nomination paper has to be completed in the prescribed form and has to be signed by the candidate and by an elector of the constituency as proposer.

15. Sub-section (2) of Section 33 of the Act further provides that in a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.

16. Sub-section (6) of Section 33 of the Act further provides that nothing in this section shall prevent any candidate from being nominated by more than one nomination paper provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency.

17. Section 36 of the Act relates to scrutiny of nominations and the relevant portions thereof are reproduced hereunder:

Section. 36

Sub-section (1): 'On the date fixed for the scrutiny of nominations under Section 30, the candidates, their election agents one proposer of each candidates, and one other person duly authorized in writing by each candidate, but no other person may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examinting the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 33'.

Sub-section (2): 'The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary reject any nomination on any of the following grounds:

(a) ... ... ... ...

(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or

(c) ... ... ... ...

Sub-section (3) : 'Nothing contained in Clause (b) or Clause (c) of Sub-section (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed'

Sub-section (4): 'The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character'

Sub-section (5): ... ... ... ...

Sub-section (6) : 'The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.'

Sub-section (7): ... ... ... ...

Sub-section (8): ... ... ... ...

18. The Conduct of Elections Rules, 1961 (for short 'the Rules' hereinafter), prescribe the procedure and forms for filing nomination paper. Rule 4 of the Rules provides that every nomination paper presented under Sub-section (1) of Section 33 shall be completed in such one of the Forms 2A to 2E as may be appropriate. Form No. 2B is the appropriate form for election to the Legislative Assembly of the State. It contains a declaration to be given by the candidate in case of reserved constituency. That declaration is a part of the Form to be filled in by the candidate. The declaration reads as under:

'I further declare that I am a member of the... caste/tribe which is a Scheduled Caste/Tribe of the State of.. in relation... (area) in that State.

Date.... (Signature of candidates)

19. The objection raised in the petition is that the declaration signed by the respondent No. 1 in his nomination form was defective in as much as he had not specified the particular caste to which he belonged in that declaration and had only declared that he was a member of Scheduled Caste which was declared to be so for the Nagour area of the State of Rajasthan.

20. According to the petitioner the declaration should have been that respondent No. 1 belonged to 'Meghwal' caste which was declared to be Scheduled Caste for the Nagour area of the State of Rajasthan. The petitioner had confined in the petition to showing the defect in the nomination form of the respondent No. 1 alone and did not refer to the caste certificate attached to it because according to the petitioner the caste certificate was not in fact filed along with the nomination form as its appendix or otherwise and the petitioner had knowledge of it only when reference to it was made by the respondent No. 1 in rejoinder to the reply filed by the petitioner to the application raising preliminary objections filed by the respondent No. 1. According to the petitioner, the nomination form did not carry endorsement that the caste certificate was enclosed or appended to it. The petitioner also contended that if the caste certificate had been filed along with the nomination form, reference to it would have been found in the application raising the preliminary objections filed by the respondent No. 1. It was also contended by the petitioner that factually, it was impossible to have obtained this caste certificate on the day on which it was shown to be issued and to file it alongwith nomination paper on the same day. It was also contended that the law requires the declaration to be given in the nomination form itself and it was not permissible to file a separate certificate certifying the caste by any other authority. It was submitted that even if the certificate is proved to have been filed along with the nomination form, it would not satisfy the condition of the Statute because the caste certificate issued by the Tehsildar cannot be taken to be a declaration made by the petitioner of his belonging to a particular caste which was recognized as a Scheduled Caste for the concerned area.

21. The respondent No. 1 on the other hand contended that it was not necessary to have referred to the existence of the certificate in the application raising the preliminary objections. According to the respondent No. 1, it became necessary to refer to it in the rejoinder after the reply to the preliminary objections was filed. It was also submitted that had the caste certificate been not appended to the form, the petitioner would, certainly, have objected to the validity of the form at the time of scrutiny of the nomination papers. Thus according to the Respondent No. 1, the fact that the form was not objected to showed that it was perfect in all respects at the time of scrutiny. It was further submitted that the petitioner cannot be allowed to challenge the record like this when there is no whisper about it in the petition and there are no grounds on which it can be presumed that the returning officer and other officers charged with the duty of conducting fair and free election would go to the extent of forging or fabricating evidence in favour of the respondent No. 1.

22. I proceed now to examine the evidence on the point.

23. The petitioner who examined himself as PW1 stated that the nomination paper of respondent No. 1 was defective and was wrongly accepted by the returning officer. He produced the certified copy of the nomination paper of respondent No. 1 as Ex. 89A. The original, which was produced by the returning officer, was marked as Ex. 89. The petitioner stated that the form was defective and should not have been accepted because respondent No. 1 had not mentioned his sub-caste 'Meghwal in the declaration in the form. On cross-examination by the learned Counsel for respondent No. 1, the petitioner admitted that he was not present when the nomination form in favour of respondent no. 1 was filed. He also expressed ignorance as to how many nomination papers were filed in favour of respondent No. 1. He also admitted that he did not know what documents if 'any, were appended by the respondent No. 1 or his sponsors to the nomination form. The petitioner further stated that he was present through out the period during which the scrutiny of the nomination papers took place. He did not remember as to at what specific time nomination papers in favour of respondent No. 1 were taken up for scrutiny. He also did not remember the sequence in which the forms were scrutinized. He admitted that he did not object to the nomination papers in favour of respondent No. 1 at the time of scrutiny. He further stated that he did not utilise the opportunity of seeing the nomination form of respondent No. 1 as he was busy in talking to someone at that time. He further admitted that he personally knew that respondent No. 1 belonged to 'Meghwal community. He also admitted that 'Meghwal caste is included in the Scheduled Castes in the whole of the State of Rajasthan. On being shown the caste certificate Ex. 90, the petitioner stated that he did not know whether the certificate was filed along with the nomination form or not. He further denied the suggestion that he had seen the nomination papers filed in respect of respondent No. 1 and the documents filed along with it and did not object because certificate of caste was filed along with the nomination form.

24. On behalf of the respondent No. 1, respondent No. 1 himself was examined as DW1. He stated that two nominations were filed proposing his name as a candidate for the election. The first nomination paper was submitted on October 13, 1993 at 11.50 AM. He stated that he had attached a certificate certifying that he belonged to the Meghwal caste which was a Scheduled Caste along with the nomination paper. This nomination paper was Ex. 89 and the certificate filed along with it was Ex. 90. The second nomination paper according to the respondent No. 1 was filed on October 16, 1993 nominating him as a candidate. According to the respondent No. 1, both the nomination papers were accepted and nobody raised any objection to them. In his cross-examination, he admitted that there was no endorsement on Ex. 89 that any enclosure was annexed to it. According to him enclosures were not mentioned because there was no column for specifying the enclosures in the Form Ex. 89. He admitted to have filed bio-data along with the nomination form which was marked as Ex. 91. The respondent No. 1 further deposed that he moved an application before the Tehsildar for obtaining the certificate Ex. 90 on October 13, 1993. He did not remember the time of making the application but he had personally gone to file an application before the Tehsildar. The Tehsildar made enquiries from the Patwari who was present there. He further admitted that Tehsildar's office and the office of the returning officer where nomination papers were being accepted were at the distance 'of about 2-3 KMS from each other. According to him, he had reached at Parbatsar at about 8.30 to 8.45 AM on October 13, 1993. He had reached Tehsildar's office before it opened. He had taken the paper from Tehsil office itself and wrote the application for issue of certificate. The Tehsildar's office opened at 10.00 AM. He did not remember as to who had accompanied him at that time. He could not also give an estimate of the time he took in writing down the application and presenting it to the Tehsildar. He also could not given any estimate of time which passed between applying for the certificate and obtaining it. He did not remember as to what documentary evidence he produced before the Tehsildar in support of his application. He also did not remember whether he filed any application before the Tehsildar in support of the application. He also pleaded ignorance of the procedure followed by the Tehsildar in dealing with the application for grant of caste certificate. He admitted that his village of residence comes under Up-tehsil Makrana which was in Tehsil-Parbatsar and the Patwari was expected to sit at Patwar Circle Borawad. However, he insisted that the Patwari was available with the relevant record at the Tehsil Office at Parbatsar. The Patwari came to the Tehsil Office at Parbatsar at 10.30 AM. As to how many of the Patwaris were present at that time at the Tehsil office, he did not remember. He did not remember the name of the Patwari of Borawad who was present at the Tehsil office on that day. He further stated that Patwari knew him as a Trader in Marbal carrying on business on the by-pass road and the Borawad road. As the Tehsildar and Patwari used to come to his place of business, they knew him. The respondent No. 1 denied the suggestion that Ex. 90 was not filed along with Ex. 89. He then stated that it took between one hour fifteen minutes to one hour thirty minutes from the opening of the Tehsil office till he finished the work of filing the nomination papers. He stated that he had instructed his counsel about the certificate of his caste having, been filed along with the nomination paper but he could not give any reason as to why this was not mentioned in the application raising the preliminary objections. He then denied the suggestion that caste certificate was not filed along with the nomination form and that after receiving the notice of the election petition, the certificate was got inserted in the record. He also denied the suggestion that there was no reference to the caste certificate in the application raising preliminary objection because the caste certificate did not exist at that time.

25. DW2 Arun Kumar Mathur was the Election Agent of Rakesh Meghwal respondent No. 1 at the election of the Parbatsar constituency. He stated that he was present at the time of filing of the nomination papers of the respondent No. 1 as also at the time of scrutiny. He stated that he was present at the time when the first nomination paper of the respondent No. 1 was filed on October 13, 1993 as well as when the second nomination paper in favour of respondent No. 1 was filed on October 16, 1993. He submitted that along with the nomination paper filed on October 13, 1993, a caste certificate certifying that Shri Rakesh Meghwal belonged to a Scheduled Caste was filed. The witness identified Ex. 90. the caste certificate which was filed along with the nomination paper. He stated that the returning officer took the nomination papers one by one and before accepting the nomination paper, showed it to all the persons present there and thereafter accepted it when no objection was raised by anyone. According to the witness, the petitioner Mohan Lal was present at the time of scrutiny but he raised no objection to the validity of the first nomination paper. The witness further admitted that he had taken the instructions from respondent No. 1 for filing reply to the petition and also briefed his counsel about his defence in the case. He came with the respondent No. 1 to Jodhpur to engage a counsel and to instruct him on his behalf. In the first place they wanted to raise preliminary objections to the maintainability of the petition and as such got an application for rejection of petition on, preliminary objections prepared. According to the witness at that time it was not thought necessary or proper to refer to or file certain documents including the caste certificate Ex. 90. These documents were filed later on when in reply to the application raising preliminary objections the petitioner took a plea that the nomination paper was invalid because of faulty declaration about caste. The caste certificate was therefore filed along with the rejoinder of the respondent No. 1 in answer to the reply filed by the petitioner to the application raising preliminary objections. In his cross-examination, the witness stated that at the time of scrutiny so far as he remembered, Shri Prahlad Ram was present with the petitioner. He stated that he was there in the Chamber of the Sub Divisional Officer throughout the time scrutiny was going on. He denied the suggestion that the returning officer did not give any opportunity to raise objections and accepted the nomination papers only after perusing them. Further on, the witness stated that he had met respondent No. 1 Rakesh Meghwal at about 9.00 AM on October 13, 1993 in the Tehsil compound. Two-three persons were there with Rakesh Meghwal but he did not remember their names. The witness left the Tehsil premises before 10.00 AM. At about 11-11.30 AM, he met Rakesh Meghwal again at the S.D.O.'s office. Shri Rakesh Meghwal applied for issuance of caste certificate. The application and the affidavit as also the caste certificate in duplicate in a printed form were filled in by the witness and prepared by him and handed over to Rakesh Meghwal. The witness further stated that he could not say as to whether Rakesh Meghwal only appended his signatures to the documents prepared by him. He did not know what else he did. He however did not know as to whether the application form filled in by the witness was submitted by Shri Rakesh Meghwal to the S.D.O.

26. DW 4 Devki Nandan Pandey, the Returning Officer stated in his examination-in-chief that Form Ex. 89 was presented to him and accepted by him to be valid. Certificate Ex. 90 was produced along with nomination Form Ex. 89. No body had objected to the validity of nomination form at the time of the scrutiny. In his cross-examination the witness admitted that he had seen the nomination form Ex. 89 in the Court only, after having last seen it at the time of the scrutiny. He admitted that in Ex. 89 caste of the candidate was not written. He also admitted that there was no endorsement on Ex. 89 that certain documents were enclosed with it. He also admitted that Ex. 90 did not bear any endorsement by him as a Returning Officer, he also admitted that only on perusal of Ex. 90, no one can show as to when and on what date it was presented. He further denied that he had accepted the nomination Form Ex. 89 without applying his mind as Ex. 89 did not specify the particular caste to which Shri Rakesh Meghwal belongs. He categorically stated that actually he was so satisfied because of certificate Ex. 90. When cross-examined on the point of feasibility of preparation of certificate Ex. 90 during a short time, the witness stated, that if the Patwari was available on the spot, the process of grant of caste certificate should take half an hour. He admitted that Patwaris are not usually available in the Office. According to the witness, it was not necessary for the Returning Officer to make any endorsement on the documents which accompanied the nomination form. He denied the suggestion that Ex. 90 was not before him at the time of the scrutiny of the nomination papers.

27. I now proceed to decide the factual question as to whether the caste certificate Ex. 90 was filed along with the nomination Form Ex. 89.

28. In the original pleadings of the petitioner that is the petition, there is nothing about caste-certificate Ex. 90 not being filed along with the nomination Form Ex. 89. According to the petitioner this is so because factually the caste certificate Ex. 90 was not filed along with the nomination Form Ex. 89 and therefore, the petitioner was naturally unaware of the caste certificate Ex. 90 or of its filing along with the nomination form Ex. 89. It is contended by the petitioner that the caste certificate Ex. 90 was inserted later on in the record and was not there at the time of scrutiny. In support of this contention, the petitioner points out that had the caste certificate Ex. 90 been on record on the date of the scrutiny, the respondent No. 1 would have made a mention of it in the application raising preliminary objections filed by the respondent No. 1 which was the earliest opportunity for the respondent No. 1 to have referred to the caste certificate Ex. 90. The petitioner contends that an adverse inference should be drawn against the respondent No. 1 on this point because of non mention of the caste certificate Ex. 90 having been filed along with nomination Form Ex. 89 by the respondent No. 1 in his first application in this case made by the respondent No. 1.

29. The application under Section 83 of the Act read with Order 7 Rule 11 and Order 6 Rule 16 of the Code of Civil Procedure read with Section 87 of the Act was filed by respondent No. 1 on July 15, 1994. In Paragraph-5 of that application following averments relating to vagueness and insufficiency of the pleadings in Paragraph-9 of the pleadings were raised in the following terms:

PARA: 5 That in para No. 9 of the election petition the petitioner has alleged that the Returning Officer has improperly accepted the nomination paper (Annexure No. 3) of the respondent no. 1 though it did not contain the declaration of the respondent no. 1 specifying the particular caste of which he is a member. It is submitted that the above para does not at all disclose the material facts regarding the alleged improper acceptance, of the nomination paper of the respondent No. 1 by the Returning Officer and, therefore, the election petition is not maintainable on the ground mentioned in para No. 9.

A perusal of the nomination paper, Annexure 3, clearly shows that it was complete in all respects, that it suffered from no infirmity and that no objection whatsoever was raised from any quarter to its acceptance. The Returning Officer was bound to accept the nomination paper of the respondent No. 1 and his order of acceptance is well founded. And there being no pleadings as to how and why his (Returning Officer) order is incorrect, the averments of para No. 9, as already submitted above, do not disclose any cause of action and the same deserve to be struck off as being unnecessary and frivolous and their presence is likely to prejudice the respondent No. 1.

30. The petitioner filed a reply to this application in which the objections raised in Paragraph-5 of the application were replied as under:

PARA: 5 OF THE REPLY:

That the averments contained in para 5 are incorrect and denied. It is submitted that the petitioner has given the full facts regarding the improper acceptance of the nomination paper of respondent No. 1. It is submitted that in the relevant column of the nomination paper it is necessary for an incumbent to specify the caste and since the respondent No: 1 has not specified the caste in the relevant portion of the nomination paper, there is violation of the mandatory provisions of the Act and the petitioner has furnished the full material facts and the nomination paper of the respondent No. 1 was liable to be rejected. It does not make any difference that no objection was raised by the petitioner before the Returning Officer because it was the duty of the Returning Officer to have rejected the nomination paper which was incomplete.

31. A rejoinder was filed by the respondent No. 1 to this reply and in Paragraph-4 of that rejoinder it was specified that a caste certificate was filed along with the nomination form and a copy of it was filed along with the rejoinder as An. R/1/1. Paragraph-4 of the rejoinder reads as under:

PARA-4 OF THE REJOINDER FILED BY RESPONDENT NO. 1:

That para No. 5,of the reply is denied and para No. 5 of the application is reaffirmed. It is submitted that the nomination papers filed by the answering respondent were all complete and that is why no objection was raised by the petitioner or by any other person at the time of scrutiny and the Returning Officer rightly accepted the same and the objection raised by the petitioner in his Election Petition is not sustainable. Even annexure No. 3, which purports to be a copy of one of the nomination papers submitted by the answering respondent, clearly shows that all the columns of the additional declaration including the columns regarding the 'State', the 'area' and the 'caste' were duly filled in and the answering respondent also mentioned his caste 'Meghwal' in his full signature subscribed to the said declaration forming part of his nomination paper. That being so, the Returning Officer had no option but to accept the same. The petitioner has not even disclosed in Para No. 9 of the Election Petition that the answering respondent filed more than one nomination papers and that he (respondent No. 1) annexed therewith the certificate dated 13.10.1993 issued by the Tehsildar, Parbatsar, certifying that the answering respondent belongs to 'Meghwal' caste, which is specified as a Scheduled Caste. The above certificate (a certified copy whereof is filed herewith as Annexure No. R/1/1) having been annexed with nomination paper has to be treated as forming part of the nomination paper and the declaration contained therein that the respondent No. 1 belongs to the Scheduled Caste of 'Meghwal' must be understood and treated as a declaration by the candidate by the respondent No. 1 in the nomination form within the meaning of Sub-section (2) of Section 33 of the Act. The petitioner as submitted above, has not disclosed that the above certificate was filed with the nomination paper filed on 13.10.1993 and hence on account of the nondisclosure of the above fact amongst other facts renders the averments in the Election Petition incomplete and unsustainable. Hence Para No. 9 of the Election Petition and the ground regarding alleged improper acceptance of the nomination paper of the respondent No. 1 deserve to be struck off being absolutely false, frivolous and lacking in material facts.

32. After all this, the petition was not amended to incorporate pleadings on the caste certificate Ex. 90 not being filed along with the nomination Form Ex. 89 or its insertion in the record thereof. The plea was reiterated by the respondent No. 1, in the reply to the petition. Thus so far as the petition is concerned it is silent on the question as to whether the caste certificate Ex. 90 was filed along with the nomination form Ex. 89. The submissions made on behalf of the petitioner in this respect amount to alleging that the records of the election were tampered with and a document which was not there at the time of scrutiny was inserted therein after the date of the scrutiny. It is a serious allegation which should have been specifically taken. The evidence led by the petitioner on the point is also shaky and as already seen, the petitioner does not come out with the case that he had seen the nomination form Ex. 89 at the time of scrutiny and at that time the caste certificate Ex. 89 was not appended to it. He takes a convenient plea that when the nomination form of the respondent no. 1 was being scrutinized, the petitioner was busy in talking to someone else. In his cross-examination, the petitioner had admitted that he did not know as to how many nomination forms were filled in favour of respondent No. 1 and therefore did not know what documents if any were appended by the respondent No. 1 or his sponsors while filing the nomination forms.

33. On the otherhand, the respondent No. 1 categorically stated in examination-in-chief that he had obtained the caste certificate Ex. 90 and filed it along with the nomination form Ex. 89. In his cross-examination several questions were asked to the respondent no. 1 to suggest that the caste certificate Ex. 90 was not and could not have been obtained and filed along with the nomination Form Ex. 89. It was suggested to him that in the short time available, the caste certificate could not have been obtained on the same day and could not have been filed along with the nomination form Ex. 89. The respondent no. 1 withstood the lengthy cross-examination without being shaken and there was nothing in his statement which could be branded as unreliable on the point of filing of the caste certificate Ex. 90 along with the nomination form Ex. 89. Shri A.K. Mathur, the election agent of respondent no. 1 who was examined as DW 2 categorically stated that he was present when the nomination form Ex. 89 was filed. He also deposed that the caste certificate Ex. 90 was appended to the nomination form Ex. 89 before filing it before the Returning Officer. He further deposed that at the time of scrutiny also he was present and as no one objected to the validity of the nomination form Ex. 89, it was accepted.

34. Shri D.N. Pandey, the Returning Officer who examined as DW 4 also categorically stated that when the nomination form Ex. 89 was presented to him, it was accompanied by the certificate Ex. 90. In his cross-examination he had denied the suggestion that the caste certificate Ex. 90 was not before him at the time of scrutiny of the nomination form. The factum of the caste certificate Ex. 90 having been filed along with the nomination form Ex. 89 and it being time of the scrutiny is therefore proved. In the fact of such a clear oral evidence supported by the fact that the record of the election transmitted by the District Election Officer to this Court contained the caste certificate Ex. 90 along with the nomination form Ex. 89 is sufficient to hold that the caste certificate Ex. 90 was filed along with the nomination form Ex. 89. No adverse inference can be drawn against the respondent no. 1 only on the basis that he had not mentioned the caste certificate Ex. 90 being filed along with the nomination form Ex. 89 in the application raising preliminary objections and on the basis that there was no endorsement on Ex. 89 that the caste certificate Ex. 90 was enclosed along with it and on the basis that on the caste certificate Ex. 90 no endorsements were made by the Returning Officer. These are not such things which will conclusively prove that the records were tampered with and a document which was not there in the record was later on inserted in the records. As already observed, the charge of having tampered with the record is a serious one and cannot be easily accepted on the basis of conjectures, surmises or lightly or conveniently drawn inferences in favour of the party alleging such tempering.

35. Let us now see the legal position as to the validity of the nomination form Ex. 89 whether taken alone or along, with the caste certificate Ex. 90.

36. It is contended by the petitioner that as the nomination form Ex. 89 does not contain the declaration as to the particular caste to which the respondent no. 1 belongs, the nomination form had to be rejected as invalid. The contention of the respondent no. 1 is that even if the caste certificate Ex. 90 had not been attached to it, the nomination form could not have been rejected as it contained the name of the caste to which respondent no. 1 belongs. A bare perusal of the nomination form Ex. 89 would show that the declaration about the caste given therein is not given specifically. Instead of declaring that the respondent no. 1 belongs to the Meghwal caste which is a Scheduled Caste declared for the Nagour area, the declaration given was that the respondent no. 1 belongs to Scheduled Caste. This declaration cannot be said to be a valid declaration. The argument that since the name of the petitioner in the Form was written as Rakesh Meghwal and that under his signatures, he had also written Rakesh Meghwal, the fact that he claimed to be of Meghwal caste was amply proved. Such a plea cannot be accepted. When a declaration that a person belongs to a particular caste was required, it has some significance because then the person is supposed to have solemnly affirmed that he belongs to a particular caste. Such a declaration could not be presumed by inference or with reference to the surname of the candidate. There may be cases in which a person may not belong to a particular caste but may use for the sake of convenience or social upgradation of the status, surname giving out himself to be of a different or higher caste. When the law requires a direct declaration an indirect reference cannot be taken to be sufficient and an inference in favour of the candidate cannot be drawn from such indirect reference to the caste.

37. I therefore hold that the nomination form Ex. 89 without the caste certificate could not have been a valid nomination form and would 'have been liable to be rejected for non-compliance of the mandatory requirements of Section 33(2) of the Act.

38. It is to be now examined as to whether the caste certificate filed along with the nomination form would render the nomination form valid.

39. The decision of the Supreme Court in Ganu Ram v. Rikhi Ram Kaundal and Ors. : [1985]1SCR63 is precisely on the same point. The Himachal Pradesh High Court had set aside an election on the ground that the nomination paper which did not contain declaration about the specific caste of the candidate who was contesting for the reserved seat was invalid for that reason though a caste certificate issued by the District Magistrate certifying him to be a member of the specific Scheduled Caste was appended to such form. This decision of the Himachal Pradesh High Court was reversed by the Supreme Court by the aforesaid decision. Paragraphs-5 and 6 of that judgment contained the reasons given by the Supreme Court for holding that the requirements of Section 33(2) could be fulfilled by even appending a separate certificate along with the nomination form certifying that the candidate belongs to a particular Scheduled Caste. Paragraphs-5 and 6 of the decision are being reproduced hereunder:

PARA: 5 Section 33 of the Act deals with the topic of presentation of nomination paper and requirements for a valid nomination. Sub-section (2) of the said section which alone is relevant for our present purpose reads:

(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.

It is not disputed that in the nomination form filed by the appellant and his proposer, no written declaration had been made specifying the caste to which the appellant belongs and the area in relation to which that caste is a Scheduled Caste of the State. But it is common ground that along with the nomination paper the appellant had filed as an annexure thereto a certificate issued Sub-Divisional Magistrate, Ghumarwin certifying that the appellant belonged to a Scheduled Caste namely 'Lohar'. The said certificate was appended to the nomination paper obviously with the sole purpose and intention of making it known to the Returning Officer and all others concerned that the appellant is filing him nomination as a candidate belonging to a Scheduled Caste namely 'Lohar' and It was in proof of that assertion and for eliminating doubt or controversy in the matter that the Sub-Divisional Magistrate's certificate was produced. The High Court has taken the view that since Section 3 of the Act requires that the nomination paper must be in the prescribed form and Form 2B is a enclosure or certificate along with the form is not contemplated. We are unable to agree with this view. When the nomination paper has been made in the prescribed form there is no legal prohibition against the other requisite particulars being furnished in a separate paper appended to the form instead of writing them out in the form itself. This is very often done in the matter of filing returns of Income-tax, Wealth-tax etc. In such cases the annexure appended to the form should be treated as part of the nomination paper. We are therefore of opinion that the certificate which was produced by the appellant as an annexure to the nomination paper has to be treated as forming part of the nomination paper and the declaration contained therein that the appellant belongs to the Scheduled Caste of 'Lohar must be understood and treated as if declaration by the appellant in the nomination form within the meaning of Sub-section (2) of Section 33. We have to remember that we are dealing with nomination papers pertaining to candidates belonging to Scheduled Castes and Scheduled Tribes, who, for well known historical reasons, are unfortunately, extremely backward socially, economically and educationally in comparison with other sections of our people. In such a context we consider that the Court has to place a liberal and benevolent interpretation on the provisions contained in Section 33(2) of the Act rather than adopt a narrow, rigid, technical and purely literal construction. In S. Sivaswami v. Malaikannan : [1984]1SCR104 which was also a case arising under the Act, one of us speaking on behalf of a three-Judge Bench of this Court had occasion to make the following observations which are apposite to the present context also:

In this context it is necessary to remember that nearly 90 percent of the electorate in this country consists of illiterate and uneducated rural folk totally unacquainted with the intricacies of the rules and technicalities of procedure pertaining to elections. Even if the best of endeavor is made to explain to them such complicated rules and procedures they may not be capable of grasping and fully understanding all the implications and actually carrying them into effect while exercising their franchise. If the right conferred on the people to choose their representatives to the State Legislatures and the Parliament through the process of free and fair elections is to be meaningful the will of the illiterate and unsophisticated voter expressed through a marking on the ballot paper which though not strictly inside the column of the particular candidate is clearly indicative of the identity of the candidate for whom the vote is cast has to be respected and given its full effect.

PARA:6 It is manifest that the legislative purpose underlying Sub-section (2) of Section 33 of the Act is that when a nomination paper is filed in respect of a reserved seat in any constituency there must be a clear specification by the candidate of the particular caste or tribe to which he belongs and the area in relation to which that caste or tribe is a Scheduled Caste or Scheduled Tribe of the State. This requirement is fully satisfied in the present case because by producing the certificate of the Sub-Divisional Magistrate as an annexure to his nomination paper the appellant had clearly made it known that he was filing the nomination as a candidate belonging to the 'Lohar' caste, which is admittedly a Scheduled Caste in the entirety of the area of the State of Himachal Pradesh. It is also significant that no objection whatever was raised against the nomination filed by the appellant at the time of scrutiny. The Returning Officer had published a notice of nominations under Section 35 of the Act and in the said notice it was expressly stated that the appellant had filed his nomination as a candidate belonging to the Scheduled Caste namely 'Lohar'. Having regard to all the facts and circumstances of the case and the legal position as explained above, we consider that the High Court was in error in holding that the nomination paper filed by the appellant was not valid and its acceptance by the Returning Officer was improper.

40. The learned Counsel for the petitioner vehemently argued that the aforesaid decision of the Supreme Court being contrary to the plain language of Section 33(2) of the Act was per incuriam and has to be ignored.

41. The decision of the Supreme Court in State of U.P. & another v. M/s Synthetics and Chemicals Ltd. & another : 1993(41)ECC326 was cited in support of the plea that the conclusion arrived without application of mind or preceded without any reason cannot be treated to be law declared to have binding effect under Article 141 of the Constitution and for the proposition that a decision rendered in ignorance of the Statute is per incuriam and not binding. Excerpts quoted from the GANU RAM'S case hereinabove would clearly show that it is not a case in which the relevant provision of law under Section 33(2) of the Act has been ignored. In fact the language of Section 33(2) of the Act has been interpreted and given a broader meaning. It cannot be said that the conclusion in that case was not preceded by reasoning. The condition laid down in Paragraphs-39, 40 and 41 of the decision in SYNTHETICS CASE (Supra) for holding a decision to be per incuriam are not available in GANU RAM'S case and it cannot therefore be held to be per incuriam. GANURAM's case cannot be said to have been decided sub-silentio without the particular point of law involved in the decision being perceived by the Court or being present to its mind. It cannot also be said that GANU RAM'S case was decided without arguments. It cannot certainly be said that the law was declared therein or conclusion was arrived at without application of mind or without giving any reason.

42. The next case cited on the point by the learned Counsel for the petitioner was the decision of the Supreme Court in Commissioner of Income Tax v. Sun Engineering Works (P) Ltd. : [1992]198ITR297(SC) . This decision is of no help to us. The principle that the judgment should be considered as a whole in the light of the question involved in the case and not the words divorced from the context. It is also observed in the decision that the decision of the Supreme Court takes different colours from the questions involved in the case in which it is rendered and while applying the decision in a later case the Court must carefully try to ascertain the particular principles laid down by the decision of the Supreme Court. The difficulty of the petitioner is that GANU RAM'S case is on all fours with the case in hand and therefore there is no question of applying it to the present case by inference. Section 33(2) of the Act has been interpreted and given a wider meaning in 3 GANU RAM'S case and that is, no doubt, the law laid down under Article 141 of the Constitution. It is not a case where relief has been granted by the Supreme Court under Article 142 of the Constitution of India.

43. The learned Counsel for the petitioner also cited the decision of the Supreme Court in Municipal Corporation of Delhi v. Gurnam Kaur : AIR1989SC38 . In paragraphs 10 and 11 of this judgment, the Supreme Court has discussed what would be the ratio decidendi and what can be said to be obiter dicta. It has been observed that quotability as law applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. This judgments given on concession of the parties which are settled without arguments, without reference to the provisions of the Act, have no binding authority so far as subsequent cases are concerned. It was further observed in this decision that decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having force of a statute.

44. I do not find that GANU RAM'S case was decided on concession or was decided without any arguments or in ignorance of any particular provision of law. Actually, the only provision of law involved viz. Section 33(2) of the Act was considered and interpretated and was given a wider meaning. By no stretch of imagination the decision in GANU RAM'S case can be called to be per incuriam.

45. The learned Counsel then cited decision of the Supreme Court in Smt. Saiyada Mossarrat v. Hindustan Steel Ltd., Bhilai Steel Plant, Bhilai (M.P.) and Ors. : AIR1989SC406 . In this case it was observed that observations made by the Court are not binding and can be raised again in the subsequent proceedings for the reasons already stated. I do not find that decisions in GANU RAM'S case falls in the category of obiter dicta.

46. In view of the aforesaid discussion, it has to be accepted that if a certificate given by the authority certifying the specific caste of a candidate is appended with the nomination form, it would be sufficient compliance of Section 33(2) of the Act and such a nomination form cannot be rejected as invalid even though it contains no declaration as to specific caste to which the candidate belongs. It is also note worthy that the petitioner has not challenged the candidature of the respondent No. 1 on the ground that he did not belong to a Scheduled Caste declared for the purpose of Nagour constituency. In fact he has admitted in his cross-examination that he knows that the respondent No. 1 belongs to Meghwal caste and that caste has been declared to be a Scheduled Caste for the entire State of Rajasthan. If this is an admitted position then there is no question of the result of the election of the respondent No. 1 being materially affected by the improper acceptance of his nomination which is a sine-qua-non for holding the election of the returned candidate to be void. A plain reading of Section 100(1)(d)(i) of the Act would show that improper acceptance of any nomination supplies a ground for declaration of an election of a returned candidate to be void only if it is shown that the result of the election in so far as it concerned a returned candidate has been materially affected by the improper acceptance of the any nomination. This means only, if a candidate was ineligible for contesting the election from a constituency and his nomination paper was improperly accepted, it would affect the result of the election and therefore it could supply a ground for declaration of election of a returned candidate to be void. In this case, when the petitioner admits that the respondent No. 1 was Meghwal by caste and was a member of a Scheduled Caste as such and was eligible for contesting from the concerned constituency, it is clear that the improper acceptance of his nomination would not affect the result of his election.

47. It is also significant to note that the respondent No. 1 has clearly taken a plea that more than one nomination paper was filed in his case. This is also a fact proved by the evidence that two nomination forms were filed on behalf of the respondent no. 1 nominating him as a candidate for the election. The petitioner is totally silent about the other nomination form which was also accepted by the returning officer. It was therefore, incumbent upon the petitioner to challenge the other nomination form also as invalid. As the other nomination form was not challenged to be invalid it has to be taken that it was validly accepted and whatever may be the fate of the nomination form which was challenged in this petition, it cannot be presumed that the other nomination form also suffered from the same defect and deserved to be rejected for that reason. When the other nomination form was not challenged, the result of the election of the respondent No. 1 can in no case be said to be materially affected by the improper acceptance of one nomination in his favour when under the law it is permissible to file more than one nomination form. In the petition, to succeed on the ground of improper acceptance of nomination form the Petitioner has to challenge all nomination forms filed in favour of a candidate which have been accepted as valid. If that in not done, it cannot be taken that the result of the election was affected by improper acceptance of nomination paper.

48. Issue no. 1 is therefore answered against the petitioner and in favour of the respondent No. 1.

Issue No. 2: Whether the petitioner is entitled to recounting of votes on the grounds mentioned in paragraph-8 of the petition.

49. In paragraph-8 of the petition it was alleged by the petitioner that illegalities were committed in the counting which resulted in improper rejection of the votes of the petitioner and improper inclusion of the votes of the petitioner in the votes of other candidates. It was alleged that proper arrangements were not made at the counting centre. Small tables were provided and in between the tables and the counting agents a rope was tied making it very difficult for the counting agents to note down the serial numbers of the ballots. The lighting arrangements were also very poor. When the petitioner first went to the place of counting, the last round of the counting of votes was about to be completed and at that time he was informed that numerous illegalities had been committed by the counting staff. Before the petitioner could get the details of the irregularities the last round of counting was over and respondent No. 1 was ahead of the petitioner by a margin of 159 votes. The petitioner moved an application for recounting alleging that counting had not been done in proper manner as number of ballot papers actually cast in favour of the petitioner were either rejected or counted as votes in favour of respondent No. 1. In these ballot papers, the seal affixed by the voters was partly in the shaded area but largely in the space provided for the petitioner in the ballot papers and the indication was clear that the voters had cast the ballot in favour of the petitioner. The petitioner therefore made a prayer for recounting of all the votes.

50. According to the petitioner, the petitioner was given only 15 minutes time to move an application for recounting and therefore, the petitioner could not give the other particulars in the application for recount. He however applied for recount of all the votes. The petitioner further pleaded that the Returning Officer heard the arguments and passed an order for recount of votes counted in favour of the petitioner and the respondent no. 1 and of the rejected ballot papers. The petitioner further pleaded that during the course of the recounting first of all the recounting of votes of Shri Rakesh Meghwal was undertaken. Out of his votes 37 were found to be actually polled in favour of the petitioner which were wrongly included in the bundles of Shri Rakesh Meghwal in the initial counting. This reduced the difference of votes between Shri Rakesh Meghwal and the petitioner to 85. 43 ballot papers of the rejected category were found to have been wrongly included in the bundles of Shri Rakesh Meghwal which further reduced the margin to 42. It was also pleaded that the District Returning Officer Shri Lalit Mehra who was Collector of Nagour during the relevant time belonged to the Meghwal community and was favouring to respondent No. 1 in order to see that that respondent No. 1 was elected some how. He had illegally posted one officer of Meghwal community viz. Shri Ram Chordia, Project Director, D.R.D.A. Nagour to sit and watch the counting of Parbatsar Assembly Constituency. It was also alleged that the said Shri Lalit Mehra appeared at the scene when recount was in progress and got wild at the Returning Officer for his having ordered recounting of ballot papers. It was alleged that Shri Lalit Mehra asked the Returning Officer to declare the result then and there without further carrying out the recount. The petitioner protested against the attitude of the Collector and his unwarranted interference in the process of recounting but the Collector was adamant and he remained there till respondent no. 1 was declared elected. The petitioner further pleaded that if the counting had been done in accordance with the law, he would have been declared elected by a margin of 151 votes. It was further pleaded that in order to help the respondent No. 1, the counting staff had committed various irregularities. Ballot paper which should have been counted as votes in favour of the petitioner were rejected on the ground that the major part of the seal mark was in the shaded area and only very small part of the seal mark was in the column of the petitioner. It was also pleaded that number of ballot papers were put in the tray of Shri Mohan Ram Meghwal, the candidate belonging to Doordarshi Party, details of which were said to be given in Schedule-A. The petitioner further pleaded that on account of irregularities and illegalities in the counting, 83 vote of the petitioner were counted for Shri Mohan Ram Meghwal and 110 votes of the petitioner further wrongly rejected. The petitioner further alleged that even while preparing the Form No. 16(2). the counting Supervisors have wrongly entered the figures by reducing the votes of the petitioner and correspondingly increasing the votes of respondent no. 1 and Shri Mohan Ram Meghwal of Doordarshi Party. It was alleged that despite request by the petitioner and his counting agent, the Returning Officer did not permit the petitioner and his Counting agents opportunity to. note down the serial numbers of the ballot papers and no test checking was carried out by the Returning Officer.

51. The respondents have denied all these allegations. It was emphasized that no such objections were raised during the process of counting and they were raised only after losing the election. The sum total of the pleadings of the petitioner is that the result of the election so far as respondent no. 1 was concerned was materially affected by improper reception, and rejection of votes and by reception of some votes which were void as also by non-compliance with the provisions of the Act and the Rules made therein and the grounds specified in Section 100(1)(d)(iii) and (iv) of the Act. According to the petitioner in order to prove that the result of the election of respondent no. 1 was materially affected, recounting of all the ballot papers was necessary.

52. On the question whether a full recount should have been ordered and whether recount was properly conducted or not and whether there was any non-compliance of the provisions of the Act and the Rules, the petitioner's allegations can be categorised into three heads as under:

1. Deficiency in arrangements made for counting,

(i) Faulty sitting arrangements,

(ii) Inadequacy of lighting arrangements.

2. Allegations against Shri Lalit Mehra, Collector and District Election Officer, Nagour and Shri Ram Chordia, Project Officer DRDA.

3. Allegation regarding counting:

(i) Alleged illegalities, irregularities in initial counting,

(ii) Inadequacy of time granted for making an application for recount and

(iii) Alleged illegalities, irregularities in recount.

Deficiency in arrangements made for counting:

(i) Faulty sitting arrangements,

(ii) Inadequacy of lighting arrangements.

53. The petitioner who himself was examined as PW1 did not speak a word in his examination-in-chief as regards the inadequacy of the sitting arrangements or the lighting arrangements. It is only when the counsel for respondents No. 2 and 5 put questions to him as to why irregularities of counting were not brought to his notice with reference to specific serial numbers of Ballot papers, he replied that he had asked the counting agents about the details of serial numbers of Ballot Papers in respect of which irregularities were committed but they could not give it to him because the counting arrangements were such that nobody could note the serial numbers of the Ballot Papers. He further stated on being cross-examined that arrangements made were such that the counting agents were made to sit at a distance from which they were not in a position to examine the ballot papers properly. He further deposed that the counting agents were sitting at a distance of two feet from the counting table and had to observe the ballots from that distance. There was a rope tied between the counting agents' seats and the counting tables. His election agent Prahlad Ram Mirdha had raised objection several times during the counting that the counting agents were not allowed to take down the serial numbers of the ballots. Further on the cross-examination, the petitioner PW1 stated that he had personally told the Returning Officer that he had tied the separating rope between the counting table and the counting agents at a distance. He did not lodge any complaint in writing as according to him he was not given time to do this. He also admitted that he had not lodged any complaint in writing about the illegalities and irregularities in writing before any one apart from incorporating them in the Election Petition. In cross examination on behalf of the returned candidate the respondent No. 1, the petitioner PW1 admitted that all the grounds on which he relied were taken in the application for recount by Shri Hari Ram. When confronted with the omission in the application Ex. 1 about the complaint of faulty sitting arrangements, the petitioner PW1 stated that as the application had to be drafted and submitted hurriedly and as only 15 minutes time was given to them, the omission had occurred. The petitioner PW1 also stated that his counting agents had prepared rough notes at various tables in which illegalities and irregularities on each of the counting tables were noted. These notes have not been produced in the case. They were handed over by the petitioner to his lawyer and according to him, the petition was drafted on the basis of the notes.

54. PW2 Ramesh Chandra Bohra who was the counting agent of the petitioner at the Returning Officer's table stated in his examination-in-chief that a rope was tied at a distance of two feet from these tables and beyond this rope benches were set up for sitting of counting agents. According to him a distance of three to three and half feet existed between the ballot papers which were being counted and the seats occupied by the counting agents and it was not possible for the counting agents to see clearly the ballot papers properly. It was not possible for them to see the serial numbers of the ballot papers so as to note them down. The lighting arrangements were also poor according to the witness as only series of tube-lights on both the sides of counting tables at a distance of 10 feet on each side from the counting tables were provided. In his cross-examination on behalf of respondent numbers 2 and 5, the witness stated that he had not lodged any protest about poor lighting arrangements in writing because there was no time available to do so. He also further stated that though the lighting and sitting arrangements during recount also were the same, he had no cause for complaint as recounting was carried out during day time and inadequacy of lighting was not there and as all the counting agents except those of the petitioners and respondents were removed from the scene, the sitting arrangements had also improved. He denied the suggestion that the allegations about the defects in sitting arrangements and inadequacy of lighting arrangements were false and imaginary. In his cross-examination by the learned Counsel for the returned candidate respondent no. 1, the witness stated that when he reached the place of counting at 10.30 AM on November 27, 1993, the counting arrangements were completed. The arrangements of counting tables and sitting arrangements for counting agents were also completed. The rope separating the counting tables and the benches meant for counting agents had also been tied. Within fifteen minutes of his arrival at the place of counting, all the counting agents of the petitioner had occupied their seats and were ready for commencement of counting of votes. According to him 3 to 4 hours time was consumed in opening the ballot boxes, tallying the ballot account with ballots found in different boxes, preparation of bundles of 50 ballots each from the ballots found in the ballot boxes and mixing of these bundles of ballots in the drums. During these 3-4 hours nobody complained to the witness of the obstructions created by the rope tied separating the counting tables from the chairs of counting agents. He voluntarily added that no complaint was received because by that time the counting agents had no occasion to examine the ballot papers. According to the witness, the counting of ballot papers candidate-wise started at about 6.00 PM on November 27, 1993. The witness could not say as to who was the first counting agent to complain to him about the poor lighting arrangements but he-could say that the complaint about the poor lighting was received about 15-20 minutes of commencements of actual counting of votes at about 6.20 to 6.30 PM. The person who complained to the witness told him that light was not sufficient for noting down the ballot numbers. The witness told him to complain to the Counting Supervisor concerned. The witness admitted that he did not complain in writing about the poor lighting and the distance at which the counting agents were made to sit even though the complaints were received by him immediately on the commencement of the counting and the, inadequacy of lighting arrangements was also experienced by him on the R.O.'s table even though he was not busy at that time as there was no work at the R.O.'s table. The witness could not assign any reason as to why he did not complain in writing about the sitting arrangements of counting agents though the difficulties were visualised by him immediately after the counting arrangements were seen by him.

55. Then the witness gave details about the number of tube lights fixed and their position in the counting area. He denied the suggestion that there were in all 17 tubelights fixed for 13 counting tables and the R.O.'s table and he did not complain because the light was sufficient. He could not assign any reason for the complaint about the deficiency of light or impropriety of sitting arrangements in the application for recount.

56. PW3 Prahlad Ram who was the election agent of the petitioner stated in his examination-in-chief that arrangement for counting of votes were not satisfactory and proper and there was a rope tied between the counting tables and the seats of the counting agents which resulted in difficulty for the counting agents to clearly see the serial numbers of the ballot papers and in noting them. He also stated that lighting arrangements at the place of counting was poor and inadequate. In his cross-examination by counsel for respondent No. 2, he stated that he realised the difficulty for the first time in the evening of November 27, 1993 and at about 6.00 PM. protested to the R.O. orally about the Poor arrangements of lighting and sitting but no complaint in writing was lodged by him even after finding that the R.O. was not paying any heed to his oral protests. In his cross-examination by the learned Counsel for the respondent No. 1, he stated that he could not file any objection in writing even after finding that the R.O. was not paying need to my protest. He also admitted that some electric bulbs were also fitted in addition of the tubelights. He could not give any reason why he did not complain in writing about insufficiency of light to the Collector or the R.O. in writing. He also denied the suggestion that 17 tubelights were fitted in the area and the light was sufficient and because of this no written complaint was lodged.

57. PW4 Ram Vallabh Mali, counting agent of the petitioner has stated in his, examination-in-chief that counting agents were made to sit at a distance from counting table and because of that it was not possible for them to see and note the numbers printed on the ballot papers. Lighting arrangements were also poor. According to him only two mercury tubelights were fitted in the enclosure meant for Parbatsar Constituency. In his cross-examination by the learned Counsel for respondent No. 2, he stated that he had noted insufficiency of light within 15-20 minutes of the beginning of the actual counting at 6.00 PM. He stated that he complained about the poor lighting arrangements to Shri Ram Bohra and Shri Prahlad Ram (PW2) and (PW3) respectively. In his cross-examination by the learned Counsel for the respondent No. 1. he could not give even approximately the distance at which the tubelights were fixed from the counting tables or the height from the ground level at which they were fixed.

58. PW5 Mool Chand Solanki, another counting agent of the petitioner stated in his examination-in-chief that arrangements for counting were not satisfactory. The sitting arrangements were such that the counting agents could not see and note the serial number printed on the ballot papers as they were made to sit at a distance. The light was also poor according to him and it was not possible for them to see clearly the serial number and note it down. He also stated that only two mercury tubelights were fitted in the area on two sides. In his cross-examination by the learned Counsel for the respondent No. 1, he stated that he was a counting agent in an earlier election and in that election the counting arrangement and lighting arrangement were poorer than the counting and lighting arrangements for the election of 1993. He denied the suggestion that sitting and lighting arrangements were adequate and satisfactory.

59. P.W. 6 Ugam Raj Choudhary, another counting agent also stated that the counting agents were made to sit at a distance separated by a rope from the counting tables and they could not see the ballot papers properly and they could not note the serial number of the ballot papers printed on it because of poor light. He also stated that only two mercury tubelights were fixed. In his cross-examination by the learned Counsel for respondent No. 1, he stated that in his estimate atleast seven to eight tubelights were required for providing sufficient light in the area. He further stated that he complained about the poor light to Shri Ramesh Chandra Bohra and Shri Prahlad Ram PW2 and PW3 respectively. He denied the suggestion that there was sufficient light in the premises and the sitting arrangements were proper.

60. Respondent No. 1 Rakesh Meghwal, examined himself as DW1, was given suggestion in his cross-examination about the inadequacy of the sitting arrangements and the lighting arrangements. He denied the suggestion.

61. DW2 Shri Arun Kumar Mathur, Election Agent of respondent No. 1 deposed that the area reserved for Parbatsar constituency at the place of counting admeasured 45 feet x 35 feet approximately. 13 tables were provided for counting and one additional table for Returning Officer and in that area about 17 tubelights along with seven eight electric bulbs were provided. He stated that the lighting arrangement was adequate. He also deposed that there was a rope tied between the counting tables and the benches on which the counting agents were sitting. That rope was tied at a lower height and did not obstruct the view of the counting agents. No body objected orally or in writing about the counting agents not being able to see the ballot papers. He maintained in his cross-objection that the lighting arrangements were proper. Seven to eight tubelights were fixed on each of the canvass partition and there were electric bulbs also provided in the area.

62. Shri Lalit Mehra, the Collector Nagour who was the District Election Officer at the relevant time was also cross-examined by the learned Counsel for the petitioner about the lighting arrangements. He deposed that he could not give the exact number of tubelights or bulbs put in but according to him the lights was sufficient. He also stated that he did not remember any one complaining to him about the sitting arrangement or the lighting arrangement.

63. DW4 Shri Devki Nandan Pandey who was the Returning Officer at the election stated in his examination-in-chief that the lighting arrangements were adequate on each side. Five to six tubelights were fitted on the wall and two three bulbs of 200 volts each were fixed. He also stated that-no one complained to him during the counting about the deficiency in the sitting arrangement or the lighting arrangements. He was cross-examined about the lighting and sitting arrangements details but he did not deviate from the statement made in the examination-in-chief. He denied the suggestion that only two tubelights were provided for the area. He also denied the suggestion that petitioner Mohan Lal complained to him in the evening of November 27, 1993 that the lighting arrangements were poor and inadequate. He also denied the suggestion that he had replied to the petitioner that lighting arrangement were not within his control.

64. This is all the evidence on the point of deficiency in sitting and lighting arrangements during the counting.

65. The testimony of the petitioner's witnesses on the point does not inspire confidence. It cannot be imagined that the counting would have proceeded unhampered without any objection from any of the parties if the sitting arrangements or the lighting arrangements had not been proper and adequate. After all at that particular time atleast these two leading candidates, the petitioner and the respondent No. 1 could not allow the process to be hampered by the deficiency in the sitting arrangement and lighting arrangements. They would have immediately complained and raised hue and cry about it. It is note worthy that Ramesh Chandra Bohra and Prahlad Ram PW2 and PW3 respectively, the counting agent and the election agent of the petitioner had some experience of the process of counting. They would have complained in writing about the arrangements immediately on noticing them. Atleast, it cannot be believed that if these defects were real, they would not be mentioned and made a ground for recounting in the application for recount made on behalf of the petitioner. On the over all assessment of the evidence therefore, it is not found to be proved that there was any deficiency in the sitting arrangements or the lighting arrangements. It cannot also be said that the result of the election was affected by any such deficiency.

Allegations against Shri Lalit Mehra, Collector and District Election Officer, Nagour and Shri Ram Chordia, Project Officer DRDA.

66. Petitioner Mohan Lal (PW1) staled in his examination-in-chief that Shri Lalit Mehra who was also the District Election Officer at that time, reached the place of counting at the time when recounting of invalid votes was about to begin. He scolded the Returning Officer for having ordered recount and directed him to stop the recount and declare the result in favour of Shri Rakesh Meghwal. He further deposed that Shri Lalit Mehra did this because he belonged to the same community to which Shri Rakesh Meghwal belonged. He wanted to support Shri Rakesh Meghwal being of the same community. He further deposed that the basis of his apprehension about this was strengthened because Shri Lalit Mehra had allowed Shri Sri Ram Chordia, the Project Director who was also a 'Meghwal' by caste, entry into the counting premises. According to the petitioner Shri Chordia was posted there to safeguard and further the interests of Shri Rakesh Meghwal. The petitioner deposed that he had orally protested about it before the Collector but he did not pay head to it. In his cross-examination by the learned Counsel for respondents No. 2 and 5, the petitioner admitted that he had no personal enmity with Shri Lalit Mehra and also did not know whether Shri Rakesh Meghwal was related to Shri Lalit Mehra. In his cross-examination by the learned Counsel for respondent No. 1, the petitioner deposed that Shri Sri Ram Chordia, Project Director was sitting about 10-15 feet away from the Returning Officer's table on the north side. He was watching the arrangements, sitting on the table. His presence was objected to by the petitioner, Prahlad Ram and Shri Ramesh Bohra. He could not however give any reason as to why this was not mentioned in the application for recount. He further stated that Shri Lalit Mehra had arrived on the scene at about 1.00 PM on 28.11.1993 and remained there for about ten minutes. Shri Sri Ram Chorida was also present there at that time. Shri Lalit Mehra and Shri Sri Ram Chorida had information that respondent no. 1 had won election by 42 votes. Shri Sri Ram Chordia was taking the round of the counting tables at the time of recount and had accosted the petitioner as to why he was moving around the tables. He further deposed that Shri Lalit Mehra was Collector of Nagour for about 18 months prior to the election. He then stated that Shri Lalit Mehra was posted as Collector Nagour after the dissolution of the Assembly in the year 1992. He also stated that he had never complained about the Collector and the respondent no. 1 being of the same caste. He also did not know whether Shri Sri Ram Chordia was officially posted on duty at the place of counting.

67. PW2 Ramesh Chandra Bohra, the counting agent of the petitioner deposed that at the time of counting Shri Sri Ram Chordia, Project Director, DRDA was also present and was supervising the process of counting. He however did not know whether he was present in his official capacity as a part of his duty or not. He further deposed that before scrutiny of the rejected ballot papers was started during the recount the Collector came on the spot and asked the Returning Officer as to why he had ordered recount. The Collector asked the Returning Officer as to whether the recount of ballot papers was completed or not and directed him to announce the result. The petitioner, the witness and Prahlad Ram asked the Collector as to how he was asking the Returning Officer to declare the result when recount of the rejected votes was going on but the Collector did not reply but asked the Returning Officer to declare the result.

68. PW3 Prahlad Ram, the election agent of the petitioner stated that Shri Lalit Mehra arrived on the spot when the recount was in progress and Rakesh Meghwal was lagging behind by 42 votes. He asked the Returning Officer the stage at which the counting was and on being told about the recount, he got annoyed with the Returning Officer and scolded him for having ordered the recount and asked him to declare the result then and there. The witness, the petitioner and Ramesh Chandra Bohra protested to the Collector about this but he did not pay any heed to the protest and ordered to declare the result. In his cross-examination, on behalf of respondent No. 2, the witness stated that he did not complain in writing about the conduct of Shri Lalit Mehra and did not move any application. In his cross-examination by the learned Counsel for the respondent No. 1, he expressed ignorance about the period for which Shri Lalit Mehra was posted as Collector at Nagour before the elections. He also could not say when he was transferred from Nagour. He further denied the suggestion that Shri Lalit Mehra had not arrived on the spot and had not stopped the recount.

69. PW4 Ram Vallabh Mali, the counting agent of the petitioner stated that Shri Lalit Mehra came at the place when recount was in progress and asked the Returning Officer as to what was the stage of recount. On being told that at that point of time Shri Rakesh Meghwal was leading over the petitioner Mohan Lal by a margin of 42 votes, Shri Mehra ordered closure of process of recounting and ordered declaration of result. He also deposed that Shri Sri Ram Chordia was present there and was sitting there chatting with the Returning Officer but be did not know what were the duties assigned to him. Lalit Mehra ordered closing of recount process.

70. PW5 Mool Chand and PW6 Ugam Raj Choudhary, the other counting agents also deposed on the same lines.

71. Shri Lalit Mehra was examined as DW3 stated that he belonged to 'Chamar' caste and was not a 'Meghwal'. He stated 'chamars' are 'Kabir Panthis' whereas 'Meghwals' are 'Meghwanshy'. He also stated that Shri Sri Ram Chordia was Additional Collector and Project Director, DRDA, Nagour. Some RAS Officers were posted to assist him in the work of counting and he had asked him to remain present there. He denied the suggestion that he had posted Shri Sri Ram Chordia there only to help Shri Rakesh Meghwal. He denied in his cross-examination that he had scolded the Returning Officer for having ordered the recount. He also denied that he had instructed the Returning Officer not to count the rejected ballot papers.

72. Shri Devki Nandan Pandey, the Returning Officer who was examined as DW4, stated that Shri Lalit Mehra did not ask him as to why he had ordered recount, He also stated that he did not know to which caste Shri Lalit Mehra belonged. In his cross-examination also, he maintained that the District Election Officer did not say any thing to him on the subject of recount. He had come to the enclosure after the order for recount was passed and remained there for about five ten minutes. He also stated that during the process of recount, the District Election Officer did not visit the enclosure and he was not present when the result of the election was declared. He further deposed that petitioner Mohan Lal did not have any talk with District Election Officer in his presence. He again denied that the District Election Officer had arrived at the enclosure during the recount and directed him to declare the result. About Sri Shri Ram Chordia, the witness stated that he had come to the enclosure along with the District Election Officer. He was posted there in the counting hall to look after the arrangements of the counting made by the District Election Officer.

73. In the state of this evidence, when there was no protest in writing about the behaviour of Shri Lalit Mehra or Shri Sri Ram. Chordia, it cannot be taken to be proved that Shri Lalit Mehra and Shri Sri Ram Chordia interfered with the process of counting resulting in the result of the election being materially affected. The allegations in this regard are not found to be proved.

Allegation regarding counting:

(i) Alleged illegalities irregularities in initial counting,

(ii) Inadequacy of time granted for making an application for recount, and

(ii) Alleged illegalities irregularities in recount.

74. Voluminous evidence has been led on the allegations regarding irregularities in counting. The petitioner has examined himself and his election agents and counting agents on this point. The petitioner's own evidence is of little importance because he arrived on the spot in the early hours of November 28, 1993 during the last round of counting.

75. According to the petitioner who was examined as PW1, when he went to the place of counting he contacted his election agent Prahlad Ram. His other counting agents also gathered around him and they told him that several irregularities were committed during the counting. He was told that many ballot papers cast in his favour were counted as the votes polled in favour of Rakesh Meghwal, some ballot papers were included in doubtful ballots and ultimately rejected when they were in fact valid votes cast in petitioner's favour. Some ballot paper cast in petitioner's favour were counted as votes in favour of Mohan Ram Meghwal of Doordarshi Party and some ballot papers which should have been rejected were counted as valid votes in favour of Rakesh Meghwal. He further deposed that as a result of original counting he was trailing behind Rakesh Meghwal by 159 votes. He immediately protested to the Returning Officer about the irregularities in the counting process and asked for a recount. The Returning Officer asked him to apply in writing giving Officer asked him to apply in writing giving him only fifteen minutes time to do so. The application was filed accordingly. After hearing the arguments on the application, the Returning Officer partially allowed it and ordered recount of ballot papers polled in favour of the petitioner and Shri Rakesh Meghwal as also counting of rejected ballot papers. The petitioner further deposed that as a result of recount, the difference in the votes of the petitioner and respondent no. 1 was reduced to 42. The recount was stopped without scrutinizing invalid votes. The petitioner also deposed that 37 ballot papers actually cast in his favour were found to have been wrongly included in the votes of Shri Rakesh Meghwal. 43 ballot papers which were counted in favour of Shri Rakesh Meghwal were found to be invalid votes and were rejected as invalid votes. He also stated that 83 ballot papers which were clearly marked in favour of the petitioner were counted in favour of Shri Mohan Ram Meghwal of Durdarshi Party. In his cross-examination, he admitted that he did not have personal knowledge about what transpired during the counting before he arrived on the spot. The petitioner then deposed that he had given the specific figures of ballot papers which were wrongly counted or wrongly rejected on the basis of notings made by his counting agents including Shri Ramesh Bohra Advocate. He stated that his counting agents had shown the notings at the place of counting and when he was making preparations for filing an election petition, Shri Ramesh Bohra gave the details to him on his own letter head for being passed over to his counsel. However, in his cross-examination, he stated that his counting agents had shown to him the notings of their objections to recounting after the recount was over. He further deposed that rough notings taken by his counting agents on various tables were handed over by them to Shri Ramesh Bohra after the recounting was over notes were with Shri Ramesh Bohra and he never gave them to the petitioner. When he had come Jodhpur for filing the petition, he had handed over to his lawyer the rough notes prepared by his election agents which were handed over by them to Shri Ramesh Bohra after collecting them from him. All these documents were handed over by the petitioner to his lawyer before filing the petition. He further deposed that after the petition was prepared and filed, the petitioner's lawyer returned the rough notings prepared by the election agent of the petitioner and the petitioner returned them to Shri Ramesh Bohra. The petitioner did not enquire thereafter as to whether these rough notes were still in the custody of Shri Ramesh Bohra. He returned the rough notes to Shri Ramesh Bohra because his lawyer advised him to do so. He further stated that he had seen the rough notes and could say that the grounds taken in the petition were based on those notes. The petitioner further deposed that his election agents on 13 tables had prepared such notes. The notes were prepared by the counting agents on the Returning Officer's tables also. The petitioner did not remember the major contents of the rough notes. Along with the rough notes, Shri Ramesh Bohra had handed over to him a note which was prepared on the basis of rough notes prepared by the counting agents. This paper was also handed over by the petitioner along with the rough notes to his lawyer. His lawyer returned the rough notes along with the note prepared the rough notes along with the note prepared by Shri Ramesh Bohra to Shri Ramesh Bohra. The petitioner could not assign any reason as to why there was no mention in the petition of the rough notes by the election agents or the note prepared by Shri Ramesh Bohra and the petitioner returned the rough notes along with the note prepared by Shri Ramesh Bohra that the grounds of the petition were based on the rough notes. The petitioner also could not say as to why he had not verified Paragraph-8 of the petition on the basis of documents. He could not assign any reason as to why rough notes and the note of Shri Ramesh Bohra were not produced in the Court. He denied the suggestion that the notes were not produced because they did not exist. The petitioner stated that he had not summoned Shri Ramesh Bohra for production of documents but had orally instructed him to come along with documents. Shri Ramesh Bohra had told him that he would search the documents and bring them along with him if he could find them. The petitioner did not enquire as to whether the documents were brought with him by Shri Ramesh Bohra who was present in the Court. The petitioner further deposed that the recounting proceeded for one and half hours to his satisfaction as per the order. However, he considered that there was mistakes in the recount also and it was hurriedly carried out. He had not raised any objection about the recounting process in the petition due to in advertence.

76. PW2 Ramesh Chandra Bohra who was the counting agent of the petitioner at the R.O's table also stated that he was told at the time of the counting by the counting agents of the petitioner sitting at 13 counting tables that counting was not being done properly and votes polled in favour of the petitioner were being counted as votes polled in favour of other candidate Mohan Ram of Durdarshi Party and some of the votes polled in favour of the petitioner were being wrongly rejected as invalid votes. He also stated that the counting agents had complained to him that bundle of ballot papers counted in favour of respondent No. 1 Rakesh Meghwal contained ballot papers actually cast in favour of petitioner Mohan Lal. Complaints that ballot papers which should have been rejected were also counted as valid votes polled in favour of respondent No. 1 Rakesh Meghwal were also received by him. He further stated that according to him during the initial counting 110 valid votes polled in favour of petitioner Mohan Lal were wrongly rejected and 83 votes polled in favour of petitioner Mohan Lal were wrongly counted as votes cast in favour of Mohan Ram of Durdarshi Party. He made the statement on the basis of notings and account given by the counting agents at various tables. He also stated that the rejected 110 votes were noted by him at the R.O.'s table at the time of scrutiny and they bore the seal in the shaded area in part but clearly indicated voting in favour of petitioner Mohan Lal. He could not assign any reason for not lodging complaint in writing about all this. He admitted that the election agent of the petitioner Prahlad Ram was taking rounds in the 'Pandal' and he was also aware of the illegalities as he was also apprised of the same by the counting agents of the petitioner. He could also not assign any reason for the omission to mention all these things in the application for recount, especilly the allegation that the votes of the petitioner were alleged to be counted as votes of Mohan Ram of Durdarshi Party.

77. PW3 Prahlad Ram, the election agent of the petitioner deposed that he was present throughout the counting. Ballot papers polled in favour of petitioner Mohan Lal were counted as ballot papers polled in favour of respondent Mohan Ram. Some of the ballot papers polled in favour of Mohan Lal petitioner were also counted as ballots polled in favour of respondent Rakesh Meghwal and several valid votes polled in favour of petitioner Mohan Lal were rejected as invalid votes. He also deposed that several invalid votes were counted as valid votes polled in favour of Rakesh Meghwal.

78. He further stated that after the last round of the counting petitioner Mohanlal was lagging behind Sh. Rakesh Meghwal by 42 votes. At this juncture an application for recount was given on behalf of the petitioner Mohanlal. After receiving the application, a copy was given by Returning Officer to Rakesh Meghwal who filed the reply. After hearing both the sides the Returning Officer ordered recount of ballots counted in favour of Rakesh Meghwal and Mohanlal as also directed recounting of rejected ballot papers. According to the witness the Returning Officer rejected the prayer for counting of ballot papers of other candidates. The ballot papers counted in favour of Rakesh Meghwal were scrutinized first. As a result of this scrutiny it was found that 37 ballots polled in favour of Mohanlal were earlier counted as votes polled in favour of Rakesh Meghwal. It was also found that 42 ballot papers which should have been rejected as invalid ballots were counted as valid ballot paper polled in favour of Rakesh Meghwal. According to the witness the ballots counted in favour of Mohanlal and the rejected ballot papers were not recounted though the Returning Officer had ordered for their recount. He also stated that 110 ballot papers which have been rejected should have been counted as ballots polled in favour of petitioner Mohanlal. He could not assign any reason for not having protested to the Returning Officer about the alleged irregularities. He further stated that the application for recount was not shown to him before filing but Sh. Hari Ram and Mohanlal had inquired from him about the facts within his knowledge before filing the application. According to the witness the information which he disclosed to the Court was also given to Sh. Hari Ram and Mohanlal before filing the application for recount. The witness was subjected to lengthy cross-examination in order to shake his credibility as to the allegations about the irregularities in counting. He could not supply any reason for having not created any documentary evidence regarding the allegations.

79. PW4 Ram Vallabh Mali who was the counting agent of the petitioner on table No. 1 stated that he had noted approximately 15-16 ballots affected by such irregularities. Some ballot papers which should have been rejected were counted as valid votes for Rakesh Meghwal, some ballot papers were rejected as invalid votes whereas they were actually valid cast in favour of the petitioner Mohan Lal and some ballot papers actually cast in favour of petitioner Mohan Lal were counted in favour of Mohan Ram. The Witness was cross-examined at length. He stated that he did not leave his table and therefore he could not say what was happening on other counting tables. The witness further stated that recount process was also completed in seven rounds. At the end of the seventh round petitioner Mohanlal was lagging behind by 159 votes. An application for recounting of ballot papers was submitted on the spot. In the recount only ballot papers cast in favour of Rakesh Meghwal were recounted. Ballots counted in favour of other candidates at the first round were not subjected to recount. The witness could not give any statistics in this regard.

80. PW5 Mool Chand Solanki was posted on counting table No. 12 on behalf of the petitioner. He also deposed that certain ballot papers which should have been counted in favour of the petitioner were counted as votes for Rakesh Meghwal or Mohan Ram Meghwal or were put in doubtful ballot papers. He further deposed that he had noted down the irregularities noticed by him in the counting or a slip of paper and on completion of counting he informed Shri Ramesh Bohra about the irregularities and had handed over the slip to him.

81. In his cross-examination the witness admitted that he was an active member of the Congress Party and was a Congress Member of the Municipal Board of Parbatsar. He had experience of being a counting agent in one of the earlier election. In his cross-examination, the witness first stated that he distinctly remembered that on counting table no. 12, the counting completed in seven rounds but he again turned round and said that he cannot definitely state that counting was completed in seven rounds or not. He did not remember the number of votes polled in favour of Mohan Lal and Rakesh Meghwal at counting table No. 12 where he was posted. He could not give either the exact or estimated figure of the ballot papers declared doubtful at his table. Then the witness stated that in every round mistakes were noted by him and 15 to 20 ballot papers in all were involved in such irregularities throughout the counting. He had noted them on the slip of paper which he had handed over to Ramesh Bohra after declaration of result. When the witness was confronted with Ex. 14, the result sheet prepared after recount of first round of counting, the witness stated that it was possible that when the complaints were lodged orally about the irregularities in the initial counting, the mistakes might have been corrected and the concerned ballot paper again put back in the bundle of votes of petitioner Mohan Lal. He further stated that through out the counting whenever mistakes in counting came to his notice he brought them to the notice of counting Supervisor and every time such a mistake was pointed out by him, it was corrected by the counting Supervisor. He further admitted that the Returning Officer, himself scrutinised the doubtful votes at his table and decided about them. He also stated that he was sitting at the counting table when the application for recounting was made. Petitioner Mohan Lal, Ramesh Chandra Bohra and Prahlad Ram did not come to his table to ask him as to what irregularities were committed in counting at his table.

82. PW6 Ugam Raj Choudhary was petitioner's counting agent at counting table No. 2. He deposed that he had brought to the notice of Ramesh Chandra Bohra on completion of every round, the mistakes noted by him on a slip of paper. Each time the witness pointed out the mistakes to Ramesh Chandra Bohra he brought them to the notice of the Returning Officer. In his cross-examination, he stated that he had orally informed Ramesh Chandra Bohra about the mistakes and defects in counting noticed by him and the slip on which he had noted such mistakes was handed over to him by the witness on the next day of the completion of the counting. The witness had also informed Mohan Lal, the petitioner at about 8.00-8.30 AM on November 28, 1993 when the seventh and last round of initial counting was in progress about the mistakes and defects, in the counting noticed by him. The witness had not occasion to peruse the application for recounting. According to him Mohanlal, Prahlad Ram, Ramesh Bohra and Hari Ram discussed amongst themselves and presented the application. However, in his cross-examination he admitted that the rejection of the votes as invalid was being done by the Returning Officer.

83. The defence witnesses have denied the versions given by the petitioner's witnesses about the alleged irregularities in the counting. DW3 Lalit Mehra, the Collector who was ex-officio District Election Officer deposed that he did not receive any complaint in writing from petitioner Mohanlal alleging irregularities in the process of counting, but he had orally requested him for a recount immediately after completion of the initial counting. This oral request was made to him by the petitioner when he was taking a round at about 2' o clock in the midnight. He had told the petitioner that ordering of a recount was not his job and Returning Officer was only empowered to take a decision in this respect. In his cross-examination, he deposed that the Returning Officer was not passing on roundwise information about the progress of counting to him. He went to the enclosure of Parbatsar constituency many a times during the counting. He came to know of the application for recounting submitted by the petitioner to the Returning Officer. The Returning Officer was not supposed to consult him before ordering a recount and he did not consult him. Petitioner Mohanlal met the witness many a times during counting and recounting. The witness denied the suggestion that the Returning Officer apprised him from time to time about the complaints made by petitioner Mohan Lal about alleged irregularities in the counting. The witness agreed with the suggestion that difference in the result of counting and recounting showed that in the earlier counting irregularities might have been committed. However the witness did not give any opinion as to whether the irregularities were committed deliberately. He took a stand that as he was not there through-out the counting he could not say what was the procedure followed at the recount.

84. DW4 Devki Nandan Pandey was the Returning Officer at the election. In his cross-examination he stated that he had carried out test checking after the first round of counting. About 5% of the bundles of ballot papers sorted candidate-wise were checked to find out whether the ballot papers were properly counted as ballot papers caste in favour of the particular candidate. He could not give the total number of bundles checked and the counting tables to which bundles belonged. He carried out test checking in every round of counting and every time he found that the counting was correct. The test checking was done by applying random method irrespective of the candidates. The witness then stated that as the margin of difference of votes between the candidates as a result of counting and recounting was not very large, it cannot be said that the initial counting process was altogether wrong. He stressed that initial counting process was proper despite the difference found in counting. Further on the witness deposed that he had ordered recount of the ballot papers counted in favour of Rakesh Meghwal and ballot papers rejected as invalid as also ballot papers counted in favour of petitioner Mohan Lal because the complaint in the application filed by the petitioner Mohanlal was that his ballot papers were counted as votes polled in favour of Rakesh Meghwal and were also rejected as invalid votes. The witness therefore, did not direct recounting of all ballot papers again as the complaint was restricted to the petitioner's ballot papers being counted as votes in favour of respondent Rakesh Meghwal and being excluded from counting as rejected ballot papers. The witness also stated that Ramesh Bohra counting agent of the petitioner never complained to him about the irregularities alleged to have been committed in the counting process. He also denied that he had not given a reasonable time to present an application for recounting and he did so because he was in a hot haste to declare the result. He also slated that 15 minutes time would have been inadequate for making an application for recounting but the petitioner was granted half an hours time which was sufficient for the purpose. He admitted that it was no where recorded that half an hours time was given for filing application for recounting but he was making this statement on the strength of his memory. He remembered it because according to him it was a recount. Further, the witness stated that he did not remember to have brought to the notice of the Collector any complaint about the process of counting as he himself had not received any such complaint. There was a minor contradiction in the version given by this witness and the version given by DW 3 about the presence of DW3 at the time of declaration of result. It would not be a very material contradiction because it was not possible for DW3 who was supervising the counting for eight constituencies going on simultaneously in each constituency. When confronted with Part-11 of Form No. 16, he admitted that it is necessary for the Returning Officer to affix his signatures in Part-11 on Form No. 16. He admitted that this requirement was not fulfilled by him. The witness further admitted that he had not recorded any where that he had scrutinised doubtful ballot paper at the Returning Officer's table. He also admitted that as per the permissible in the check memo. He admitted that these instructions were not followed in respect of Ex. 11. This is all the oral evidence on the point.

85. Ex. 1 is the application moved by the petitioner for recounting and rescrutinising of votes. In that application he complained of:

(a) Valid votes having been included in votes rejected invalid.

(b) Votes which should have been counted in favour of the petitioner being counted as votes of respondent No. 1 Rakesh Meghwal, and

(c) The difference of votes polled by the petitioner and respondent no. 1 was only 159 votes.

86. On the aforesaid three grounds scrutiny of the recounting of the entire votes cast was prayed for. It is noteworthy that in this application there is no complaint of the valid votes cast in favour of the petitioner Mohan Lal having been wrongly counted in favour of respondent No. 3 Mohan Ram. It has been contented on behalf of the petitioner that he could not give a detailed application because adequate time was not afforded to him. From the evidence on record, the complaint of adequate time for making an application not being given is not proved. The Returning Officer DW4 Shri D.N. Pandey has categorically stated that he had given half an hour's time for making the application. The petitioner has stated that he was given only 15 minutes time for the purpose. Even assuming that 15 minutes time was given, it could not be said that it was inadequate. After all, the main objections to the process of counting and the grounds on which recount was prayed for could be effectively incorporated in the application even a short time is given. The application was in fact made by the petitioner after consulting 2-3 of his colleagues. At least the complaint that some of the votes cast in favour of the petitioner were found to be included in the votes cast in favour of respondent No. 3 Mohan Ram could have found place in the application, if that was also a complaint made to the petitioner by his counting agents. When the petitioner had laid evidence to show that his counting agents had noted on a slip of paper the irregularities during the counting, it was obvious that the petitioner and his counting agents were alive to the possibilities of irregularities having been committed in the counting process and the result being affected by it. After all the counting agents had not collected the details of mistakes or irregularities in the counting for academic purpose. The sole purpose must have been to collect material to press for a recounting in case it becomes necessary. When these notes which every counting agent examined has spoken of being prepared have not been allowed to see the light of the day and curious explanations have been given for their non-production, the very authenticity and genuineness of the grievance of the petitioner about irregularities in the counting process becomes doubtful.

87. In order to get out of the problem created by the vagueness of the application, a curious and ingenious argument was advanced that the order dated December 16, 1994 passed by my learned predecessor Hon'ble Mr. Justice Milap Chandra on the preliminary objections decides the question finally and that decision is binding on me while deciding the case finally. The portion at the end of the paragraph-15 relied upon for this purpose reads as follows:

There can be no quarrel with the principles laid down in Air 1983 Rajasthan 3. The facts of the cases reported in AIR 1970 SC 276 AIR 1980 SC 206 AIR 1992 SC 1163, 1968 Election Law Reports 1 AIR 1993 SC 367 AIR 1964 SC 120, AIR 1967 SC 773 and AIR 1983 SC 1311 are quite different and distinguishable. The very fact that in the partial recount, errors of 43 and 42 votes were detected. It is quite probable that if the entire ballot papers would have been checked and recounted more errors might have been detected.

88. A bare reading of the above portion will make it clear that no final decision has been given in the order and it could also not have been given at that stage that there was a justification for ordering full recount or the Returning Officer had erred in not ordering full recount. What has been decided by that order is that the preliminary objections were not sustainable so far as the question of recount was concerned.

89. The learned Counsel for the petitioner pressed into service observations of the Supreme Court in Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr. : [1960]3SCR590 . He invited my attention to Paragraph-8 of the decision, which reads as under:

The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a court has decided an inter-locutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again?

90. It would be obvious the question which was examined by the Supreme Court was as to whether the decision on the interlocutory order by the Court is binding while deciding the matter finally. The question before the Supreme Court was as to whether a higher Court can at a later stage of the same litigation consider the matter which was decided by the lower Court as an interlocutory stage and no appeal did lie from it. The principle laid down by the Supreme Court that principles of res-judicata apply also as between two stages of the same litigation to the extent that a Court having at an earlier stage decided the matter one way or the other will not allow the parties to reagitate the matter again at subsequent stage of the same proceedings, is unassailable. In the context of present case this would mean that no application raising a preliminary objection on the same grounds on which earlier application was made or grounds which could be taken in earlier application could be entertained. It has not been laid down by the Supreme Court that observations made while deciding interlocutory applications are binding on the Court while disposing of the matter finally. If the contention of the petitioner is accepted it will lead to the observations usually made day in and day out by courts while deciding applications for interim injunctions or other interlocutory applications on the basis of material which is available at that stage of proceedings becoming final. If such decisions are taken to be binding on the Court all the suits for permanent injunctions would end with the decision on the applications for temporary injunction.

91. The decision in Amar Chand Inani v. Union of India : [1973]2SCR684 , was also cited with particular reference to Paragraph-9 thereof. However, it does not throw much light on the question of res. judicata as raised by the petitioner and in fact the Court has observed in Paragraph-9 of this decision that it was not necessary to decide the question of res judicata. The decision has therefore no application to this case.

92. The decision of the Supreme Court in Kshitish Chandra Bose v. Commissioner of Ranchi : [1981]2SCR764 was cited. This decision is not very relevant and in a way goes against the argument of the petitioner. The view taken by the Supreme Court in Satyadhyan Ghosal's case : [1960]3SCR590 that the Order of remand was interlocutory as the judgment did not terminate the proceedings and so the correctness thereof can be challenged in an appeal from the final Order was affirmed in the case. This has no relevance for deciding the issue in the case in hand.

93. The precise question has been considered by the Supreme Court in Arjun Singh v. Mohindra Kumar and Ors. : [1964]5SCR946 . In Para-13 of the decision it was observed that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief though, normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the court would be justified in rejecting the same as an abuse of the process of Court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo, or to preserving the property pending the final adjudication, but are designed to ensure the just, smoth, orderly and expenditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter or issue arising in the suit, nor put an end to the litigation. But though the same court is not finally bound by that order at later stages, so as to preclude it being reconsidered, and even if the rule of res judicata does no apply it would not follow that on every subsequent day on which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle of res judicata. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the court would be competent, nay would be bound to take those into account and make an order conformable to the facts freshly brought before the court.

94. In the present case, the rejection of the application raising such preliminary objection to the maintainability of the petition did not mean that that interlocutory order would dispose of the petition one way or other. Actually, the application was rejected. It meant that at that stage there was no case for throwing out the petition and petition had to be decided on its merits after taking evidence. If that was so, there was no question of application of principles of res-judicata.

95. That takes us to the case law on the question of recounting.

96. The learned Counsel for the petitioner relied on the decision of the Supreme Court in Km. Shradha Devi v. Krishna Chandra Pant and Ors. : [1983]1SCR681 . In Paragraph-8 of that decision following observations have been made:

When a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a' recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of miscount, petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. If the recount is limited to those ballot papers in respect of which there is a specific allegation of error and the correlation is established, the approach would work havoc in a Parliamentary constituency where more often we find 10,000 or more votes are being rejected as invalid. Law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot papers which answer the error and then take into consideration only those ballot papers and not others. This is not the area of inquiry in a petition for relief of recount on the ground of miscount. True it is that a recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of Returning Officer'.. that prima facie proof of error complained of must be given by the election petitioner and it must further be shown that the errors are of the election so far as it affects the returned candidate is materially affected, then recount is directed.. Even at the cost of repetition it must be said that it is not the requirement of law that in respect of each ballot paper rejected as invalid, a specific averment must be so made as to identify the ballot paper and only those that can be correlated to the allegations in the petition specifically and not generally shall be recounted. That is contrary to the requirement of the Act and the Rules.

97. Though in that case the Supreme Court was dealing with the election to the Rajya Sabha from the constituency of the elected members of the Uttar Pradesh Legislative Assembly, the procedure for the election of which is substantially different than the procedure for direct elections to the Legislative Assembly and Lok Sabha, the principle can be applied in deciding question of recount in the election to the Legislative Assemblies and to the Lok Sabha also.

98. Reference was then made to the decision of the Supreme Court in Arun Kumar Bose v. Mohd. Furkan Ansari and Ors. : [1984]1SCR118 . In Paragrpah-9 of this decision, the conditions for allowing inspection of ballot papers set out in earlier decisions of the Supreme Court in Bhabhi v. Sheo Govind : AIR1975SC2117 were reproduced as under:

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

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

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

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

(5) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.

99. In the circumstances of that case, 74 ballot papers were rejected as they did not bear the signatures of the Presiding Officers and were it was shows that the Presiding Officer failed to discharge his duties properly, the 74 ballot papers were directed to be counted as valid votes.

100. The next case relied on by the learned Counsel for the petitioner was decision of the Supreme Court in Bhag Mal v. Ch. Parbhu Ram and Ors. : [1985]1SCR1099 . In that case the difference between the successful candidate and the next candidate was of five votes in the original counting and of ten votes after the recounting. The High Court found that the discretion of the Returning Officer in the matter of rejection of some doubtful ballot papers had been influenced by the opinion of the Naib Tehsildar Who was not put on any particular duty during the recounting. In these circumstances, the High Court found a prima facie case for ordering recount of the rejected ballot papers. The Supreme Court dismissed the appeal against the aforesaid decision of the High Court.

101. The next case cited was the decision of the Supreme Court in N.E. HORO v. Leander Tiru and Ors. : AIR1989SC2023 . The margin between the winner and the first runner up in that election was 39 votes. This case is not directly on the point. The High Court had permitted the inspection of the ballot papers. In the course of such inspection, certain ballot papers which ought not to have been counted were found to have been counted in favour of one of the candidates and the Supreme Court observed that 'there may not be any specific allegation in the pleading in respect of such ballot paper, but the absence of specific averments in the pleading is no. bar to inspect such ballot papers. When illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, should be excluded. That is precisely the purpose of inspection of ballot papers.' As the Order of the High Court directing the inspection of all the ballot papers was upheld earlier by the Supreme Court, it did not allow reopening of that question.

102. The next case cited on the point was the decision of the Supreme Court in Jagit Singh v. Dharam Pal Singh and Ors. : 1994(5)SCALE130 . This case would not be of much help to the petitioner because the decision was in an appeal on the ground of insufficient pleadings. That was a case where the election petition had been dismissed on the ground that it did not contain a concise statement of material facts and was devoid of any cause of action. The Supreme Court remitted back the case for a fresh trial. The petitioner wanted to take advantage of certain observations in this case to the effect that non-giving serial numbers of ballot papers wrongly rejected was not fatal to the maintainability of the petition. However, in the fact of that case, even when, the counting agents were made to sit 5-6 feet behind a net and as such could not take down the numbers properly but he had given full particulars of the valid votes which according to the appellant, were improperly rejected.

103. In the case in hand, no particulars of valid votes which were allegedly improperly rejected have been given. Only vague and general allegations have been made.

104. The decision of the Supreme Court in Ram Sewak Yadav v. Hussain Kamil Kidwai and Ors. : [1964]6SCR238 was relied upon for the observations made therein about the circumstance in which an order for inspection of ballot papers may be granted. It was stated that such an Order could not be granted as a matter of course and the Court would be justified in granting inspection on two conditions viz. (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relied in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.

105. It was further observed in this case that an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. Mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. It was further observed that the rules for the conduct of elections clearly show that at every stage in the process the candidate or his agent have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes, and to demand a recount. The application for inspection of ballot papers must be considered in the light of provisions of Section 83(1) of the Act, which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting of watching the proceedings and of claiming a re-count. It was ultimately held in that case that the allegations in the election petition that the petitioner was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong counting on account of improper reception of votes was wholly insufficient to justify a claim for inspection.

106. In Dr. Jagit Singh v. Giani Kartar Singh and Ors. : AIR1966SC773 , it was observed that an application made for inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. In considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidates election is void. It is further observed that the scheme of the rules prescribed in Part v. of the Conduct of Election Rules 1961 emphasises the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his, election agent have been improperly over ruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that the petitioner made for inspection of ballot boxes have to be dealt with.

107. In Jitendra Bahadur Singh v. Krishna Behari and Ors. (AIR 1970 SC 276), it was observed that if an election petitioner in his election petition gives some figures as to the rejection of valid votes, the same must not be considered as an adequate statement of material facts when the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the unsuccessful candidate cannot afford the necessary basis. It is further observed as to the rejection of the votes polled in favour of the unsuccessful candidate, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot papers. Therefore it is quite easy for them to note down the serial number of the concerned ballot papers. Therefore, if the election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections; the requirement of material facts to be stated, are not satisfied and hence scrutiny of ballot papers should not be ordered.

108. In Chanda Singh v. Ch. Shiv Ram Varma and Ors. : AIR1975SC403 , it was observed explaining the true meaning of Rule 63 of the Conduct of Election Rules that it obligates the candidate to state the grounds on which he demands such recount. It is plain that a mere doubt or small lead or unspecified blemish in the manner of the counting falls short of the needs of the said rule. Suspicions of possible mischief in the process or likely errors in counting always linger in the mind of the defeated candidate when he is shocked by an unexpected result. The Returning Officer has to be careful, objective and sensitive in assessing the legitimacy of the plea for re-running the course of counting. Victory by a very few votes may certainly be a ground to fear unwitting error in count given other circumstances tending that way. If the counting of the ballots are interfered with by too frequent and flippant recounts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying if recount of voles is made easy. The best surmise, if it be nothing more than surmise, cannot be should not induce the judge to break open ballot boxes. If the lead is relatively little and/or other legal infirmities or factual flaws hover around, recount is proper, not otherwise, the stage is set for a recount given some plus point of clear suspicion or legal lacuna militating against the regularity, accuracy, impartiality or objectivity bearing on the original counting. It was further observed that to tarnish the counting staff with bias is easy for any party who divorces means from ends. The Court should be reluctant to lend quick credence to the mud of partiality slung at counting officials by desperate and defeated candidates although what is more important is the survival of the very democratic institutions on which our way of life depends.

109. In S.Baldev Singh v. Teja Singh Swatantra (Dead) and Ors. : [1975]3SCR381 , it is observed that the judicial power to direct inspection and recount is undoubted but will be exercised sparingly. A judicial re-count is not a matter of right and convincing, not conclusive, specificity is of the essence. Litigation in election matters is necessarily protracted. Liberal recount or lax re-inspection of votes may create belated uncertainties, false hopes and a hovering sense of suspense, long after elections are over, governments formed and legislatures begin to function. Moreover, while a recount, within the counting station, with the entire machinery familiar with the process still available at hand and operational, is one thing, a reinspection and recount, which is an elaborate undertaking with mechanics and machinery of a specialised nature and which cannot be judicially brought into existence without an amount of time, till and expense, is a different thing.

110. In N.Narayanan v. S. Semmalal and Ors. : [1980]1SCR571 , it is observed that the relief of recounting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The fact that the margin of votes by which the successful candidate was declared elected was very narrow, though un-doubtedly an important factor to be considered, would not by itself vitiate the counting of votes or justify recounting by the Court. The Court would be justified in ordering a recount of the ballot papers only where: (i) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (ii) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting: and (iii) the Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.

111. In Shri Satyanarain Dudhani v. Uday Kumar Singh and Ors. : AIR1993SC367 , it was observed that an order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered. In that case no objection whatsoever was raised during the counting and no irregularity or illegality was brought to the notice of the Returning Officer. Even the material in the election petition, was pleaded with the object of having a fishing enquiry and it did not inspire confidence. A cryptic application claiming recount made by the contestant before the Returning Officer without any details of any kind was moved by the petitioner. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the Returning Officer. The Supreme Court in these circumstances held, that when there was no contemporaneous to show any irregularity or illegality in the counting, ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition.

112. Considering the aforesaid material on record in the light of the aforesaid case law. 1 find that the pleadings on the question of irregularities in the counting were grossly inadequate and wholly insufficient for sustaining a plea for recount by the Court. Not only that the pleadings were insufficient, vague and general but the evidence led is also not inspiring. It is clear that according to the petitioner when the application for recount was made, he, his election agent and leaders of his party present there were aware of the alleged irregularity/illegality in the process of counting. By that time they had received information from the counting agents about the alleged irregularities/illegalities. Even then, they made a vague and general application for recount without specifying the counting tables, rounds or the ballot papers in respect of which they were alleging commission of irregularities. The vagueness of the application was sought to be explained on the ground that the time given for preparation of application was too short. On the evidence on record, it is safe to infer that at least half and hour's time was given for making an application and the petitioner and his co-workers being well informed about the allegations which they were making should have been in a position to make specific allegations giving the table numbers, rounds etc. to which the allegations related. From the evidence, it is also clear that no one had complained orally or in writing to the counting supervisors or to the Returning Officer or to the District Election Officer about the allegations. Though, according to the petitioner, oral complaints were made, it cannot be believed that when repeatedly officers were allegedly turning a Nelson's eye towards the complaints and were not paying any heed to the oral complaints made by the petitioner or his colleagues, the counting agent or election agent would not put any such complaints in writing to create evidence of their having been lodged in time especially when at least 2/3 of the counting agents of petitioner present there were practising Advocates. It is therefore to be concluded that no complaints were made during whole of the counting and only when the petitioner found himself losing at the end of the counting brighter ideas came to his end of the counting brighter ideas came to his mind or were put in his mind by his colleagues and a slipshod application was prepared and filed. Moreover since despite the vague application, looking to the narrow margin of the difference of votes the Returning Officer ordered recount, the grievance that a recount was not ordered falls to the ground. The plea of the petitioner that a full recount was not ordered is also untenable. In the application Ex. 1, as already seen, three complaints were made viz. (i) valid votes were included in rejected votes, (ii) votes polled in favour of the petitioner were counted as votes polled in favour of Rakesh Meghwal, respondent No. 1 and (iii) that the difference of votes polled by the winning candidate and the second candidate was only 159. On these three specific complaints, the recount was claimed. In his Order Ex. 2, the Returning Officer reproduced these three grounds and ordered recount only on the ground that the difference in votes was small and in order to avoid any suspicion about the counting, it was necessary to recount the votes polled by the petitioner as well as by respondent No. 1 as also the rejected ballot papers. When three specific complaints were made in the application, this could be the only Order passed by the Returning Officer in favour of the petitioner as nobody had prayed for or expressed doubt about the number of votes polled by other candidates.

113. So far as the contention that even this order was not properly and completely complied with and rejected ballot papers were no scrutinised in the recount. It is amply proved from the evidence on record that rejected ballot papers were also rescrutinised. The Returning Officer's statement in this respect cannot be lightly brushed aside. It is true that the rules have not been strictly followed in as much as there were instances of over-writings, scoring off figures in some of the Form No. 16 and the Returning Officer had not affixed his signatures to Form No. 16 but these complaints were not made by the petitioner any where in the petition and the non-compliance with the rules is certainly not such which has affected the result of the election.

114. Moreover, the petitioner or his colleagues did not raise any objection to the process of recount before the Returning Officer. Under Rule 63(2) read with proviso to Rule 63(6) of the Conduct of Election Rules, the petitioner was entitled to even ask for a second recount on the ground that mistakes and irregularities were committed during the process of recount. This was not done. When no objections were raised before the Returning Officer before the declaration of result raising the objections to recount and seeking a second recount, it would not be permissible to the losing candidate to raise for the first time in the petition any objections and claim that the process of recount was also vitated. There is, therefore, no force in the grievance that any irregularities were committed during the process of recounting.

115. For the aforesaid reasons, Issue No. 2 is also decided against the petitioner.

116. In the result, the petition fails and is dismissed. The petitioner shall pay the cost of this petition to the respondent No. 1. The cost are quantified at Rupees Ten Thousand (Rs. 10,000/-). Substance of this decision be immediately intimated to the Election Commission and the Speaker of the Rajasthan Legislative Assembly. An authenticated copy of this decision be also sent to the Election Commission.


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