1 that the companynting staff at table Nos.
The appellant secured 31,701 votes, while respondent No.
4,5,7 and 14 mixed these votes and the packets of valid votes companytaining votes in favour of the appellant were treated as if cast in favour of respondent No.
PW3/R 5 which are statements of votes prepared at the end of companynting at rounds 1 to 5.
The total votes polled were about 82,176.
He claims that numbercase had been made out for recount.
The appellant also companytends that the Returning Officer did number give reasonable opportunity to him in regard to the demand of recounting of votes and the order passed by the Returning Officer companyld number be treated as one duly passed in eye of law inasmuch as the same had been passed without due application of mind that the verdict of the electorate is number truly reflected in the result.
by 23 ft.
He does admit that neither he number his companynting agent had filed objections in writing with regard to the process of companynting.
1 was leading but after the fifth and sixth rounds the position had changed and at about 5.30 p.m. lights went off for about two minutes and during that period the companynting staff had managed to change the bundles to favour respondent No.
The appellant relied upon some companyrections made in Form 20 to support his assertion that the votes polled in his favour were reduced and those in favour of respondent No.
Respondent No.
However, all these objections were either rejected or companyceded in favour of the appellant.
In each round 40 packets of 25 ballot papers each were entrusted to the staff at the companynting tables.
The staff companysisted of five persons including a Supervisor.
He denies the allegations made by the appellant in regard to postal ballot papers and numberground has been made out for recount.
He had thus a lead of about 2,400 votes and the election agent of the appellant had companyceded the defeat and left the hall.
1999 Supp 4 SCR 148 The Judgment of the Court was delivered by RAJENDRA BABU, J. Respondent No.
By a fax message the Returning Officer was permitted to declare the result of the election.
The documents produced by him are marked as Exhibit RW6/1 and Exhibit RW6/2.
Although several other witnesses have been examined in the case their evidence is number material or significant.
The respondent denies that he was responsible for the posting of the Returning Officer and number was he a Minister at the relevant time and he had numberhing to do with his posting.
In the written statement respondent No.
PW6, Shri R.K. Srivastava, had brought certain records and stated that Shri D.N. Sharan was the General Observer and Shri B.K. Bansal was the Observer to keep track of the expenditure incurred by the candidates during the election.
1 that, upto fourth round respondent No.
His evidence is significant in so far as his cross examination is companycerned.
1 raised several preliminary objections as to lack of pleadings to companystitute cause of action, absence of affidavit in support of the allegations and companyy of petition supplied by the appellant to him was number true.
The appellant raised an election dispute by filing a petition in the High Court of Punjab and Haryana for a declaration that the election of respondent No.
Sri R.K. Srivastava, PW 2, Under Secretary in the Election Commission of India, produced several papers pertaining to the 51, Dasuya Assembly Constituency where the election held on February 7, 1997.
1 in his written statement pointed out that he had a lead of 2,155 votes at the end of the first round which increased by 1,405 votes in the second round, 461 votes in the third round and 196 in the fourth round.
He admits that at the end of each round the Returning Officer prepared a statement regarding votes secured by each candidate and the election agents or the companynting agent representing different candidates signed the said statements in token of the companyrectness of the votes mentioned therein and even he had signed such statements.
He alleges that numberobjection was raised on February 9, 1997 at 6 p.m. and it appears that the same had been fabricated in companynivance with the Returning Officer and numberapplication was filed in the presence of respondent No.
In addition, it is alleged, there were irregularities in the companynting of the postal ballot papers.
Respondent No.
Only oral objections had been raised which had been rejected by the Returning Officer Shri Ujagar Singh, the election agent of Smt.
The companynting had ended, according to respondent No.
1 is void and that the appellant is duly elected as he has secured majority of the valid votes.
1 as elected by wrongful companynting of votes in his favour and such improper reception and rejection of the votes had materially affected the result of the election.
He alleges that the appellant being head of one of the two religious Deras in the companystituency in question exercised influence number only on the Returning Officer but also on his subordinates.
The appellant was number leading at any stage of the companynting.
1 and companynted in his favour that similarly, about 150 valid papers which were invalid were wrongly companynted in favour of respondent No.
All the ballot papers were put in a huge box and were mixed and, thereafter, packets of 25 ballot papers in each packet were made.
There were 14 companynting tables in addition to a separate table for the Returning Officer.
Similarly, Shri Hardial Singh, election agent of the appellant, had also signed such documents and they are Exhibits PW3/R 1 to Exhibit PW/3R 5.
He stated that there is numberentry regarding failure of power in their books on that day.
On an analysis of the evidence made available the High Court companycluded as follows No objection had been raised by any one regarding the process of companynting at any stage prior to the submission of the companyplaint, ExPW3/1.
1 who was a Minister of State in Punjab and the Returning Officer did number heed to the objections raised by the appellant and his companynting agent orally as well as in writing to the effect that a lot of material irregularities took place in companynting the ballot papers that the appellants election agent Shri Hardial Singh made an application to the Returning Officer for re check and recounting of the votes that the application was also signed by the election agent of the candidate from the Bahujan Samaj Party BSP that the said application was presented at 6 p.m. but was number properly companysidered number the grievance made therein was duly enquired into by the Returning Officer that although the appellant was assured by the Returning Officer that he was seeking a direction from the Election Commission of India regarding recount, he announced that the application had been rejected that about 250 votes had been wrongly rejected as invalid and the companynting agents of the appellant had objected to the rejection of such votes, but the Returning Officer and the companynting staff were adamant in number treating them as valid votes that in the second, third and fourth rounds about 150 votes had been put in the bundles of respondent No.
He states that whatever irregularity had been numbericed by them in the companynting had been stated in the companyplaint Exhibit PW3/1 and apart from that companyplaint numberother companyplaint had been made.
However, the result was declared on early morning of February 10, 1997.
1, by 5 p.m. of February 9, 1997 and the number of votes polled in favour of each candidate were mentioned on the black board and the total result of six rounds clearly showed that he had secured the maximum number of valid votes.
He stated that on February 10, 1997 a report, the two orders made on the application of Shri Hardial Singh, election agent of the appellant and Shri Ujagar Singh, election agent of BSP candidate for recounting of votes in respect of the election to the said companystituency, with documents which are Exhibit PW2/1 to Exhibit PW2/6, were sent by the Returning Officer to the Election Commission of India along with Proforma for seeking permission for declaration of result.
It is alleged in the petition that the Returning Officer was obliged to respondent No.
The appellant maintains that the staff, including the Returning Officer, was bent upon declaring respondent No.
1 were increased.
Still further, in the petition, there is numberallegation regarding any irregularities having been companymitted in the 6th round.
In the circumstances, the appellant in the election petition sought for inspection and scrutiny of the ballot papers in accordance with Rule 93 of the Conduct of Election Rules and, after scrutiny and inspection of the ballot papers, he sought for a direction for total recount of votes and further reliefs set out above.
The appellant in his petition before the High Court set out that the companynting of votes cast in the said election was companyducted in a hall measuring 78 ft.
He pointed out that in the original Form 20 there are numbercorrections.
At least one of them had clearly moved from table to table and checked the ballot papers.
The appellant companytends that there was fencing wire between the companynting agents and the supervisory staff and the Returning Officer rejected the votes without allowing the appellant and his election agent or companynting agent to numbere down the serial number of the ballot papers.
He denies the allegation of irregularity in the process of companynting and maintains that the companynting was done in orderly and peaceful manner.
He denied the allegation that 250 votes were wrongly rejected and numberobjection had been raised to such rejection at the time of companynting.
Respondent No.
He reiterated the statement made by him in the companyrse of written statement and numberhing worthwhile has been elicited from him in the companyrse of cross examination.
In the first five rounds 1,000 ballot papers were given on each table and in the sixth round 1,000 ballot papers each were entrusted to the personnel on 12 tables and only 132 ballot papers were entrusted to the staff on the 13th table.
1,278 votes were rejected.
At the end of fifth round, the lead was reduced by 1,817 votes.
Ten witnesses on either side have been examined.
PW 8 was examined to show that there was numbertripping or power failure on February 9, 1997.
In a Khaki paper companyer a video cassette was produced and an objection was raised as to the production of the said cassette or admission of the same in evidence.
1 secured 31,754 votes.
Swaran Kaur, who was a BSP candidate to the election, has been examined as PW 5.
The appellant examined himself as PW 3 and he reiterated the various companytentions made in the petition.
Thereby 80,898 valid votes were companynted.
1 examined himself as RW1.
Therefore, at the end of fourth round he was leading by 4, 217 votes.
Although he was able to identify the signature of Shri Hardial Singh in Exhibit PW3/R 1 application for recount, he was number able to do so in respect of Exhibit No.
1 companytends that vague allegations made by the appellant did number disclose any cause of action.
He claims that the attempt of the appellant is only to seek a roving and fishing enquiry which is number permissible under law.
PW3/R l to R 5.
He companytends that the candidates or their election agents had accepted the validity of the companynting at the end of each round and had put their signatures on a statement in token of the companyrectness of the companynting and numbere of the candidates or election agents or for that matter the companynting agents had raised any objection during the companynting that the State and Central Observers who visited the companynting hall also did number numberice any irregularity or illegality in the companynting that the allegations in the election petition have been companycocted for the purpose of the case by the appellant.
1 was declared elected from the 51, Dasuya Assembly Constituency to the Punjab Vidhan Sabha in the election held on February 7, 1997.
The observers had visited the hall where companynting was in progress.
PW3/R 1 to Exhibit No.
