ORDER
N.K. Sodhi, J.
1. This is an election petition filed under Sections 80 and 81 read with Section 84 of the Representation of the People Act, 1951 (for short the Act) calling in question the election of Ramesh Kumar respondent to the Haryana State Legislative Assembly from 38-Baroda (SC) Assembly Constituency. The Grounds on which the election has been challenged are that on the date of his election the returned candidate was not qualified to be chosen to fill a seat under the Constitution and the Act and that his nomination papers along with those of some other candidates who have been impleaded as respondents Nos. 2, 4, 5 and 8 were improperly accepted. Some irregularities during the course of the counting of votes have also been alleged and the petitioner has sought a declaratioon that after recounting the votes, he be declared elected. It is alleged that votes which were void were improperly accepted in favour of respondent 1 whereas valid votes polled tn favourof the petitioner were improperly rejected.
2. Elections to the Haryana State Legislative Assembly were held in April, 1996 in which the petitioner and the respondents were candidates from 38-Baroda (SC) reserve Assembly constituency. Petitioner contested the election as a candidate of the Haryana Vikas party whereas Ramesh Kumar respondent was a candidate of the Samta party. Polling was held on April 27, 1996, counting of votes started on May 8, 1996 and the result was declared on May 9, 1996. Respondent 1. polled 28181 votes whereas the petitioner polled 26197 votes. Since the votes polled by respondent 1 were more than the votes polled by any other candidate, he was declared elected.
3. In response to the notice issued by this Court only the returned candidate has put in appearance and opposed the petition. The other respondents did not choose to appear and were proceeded against ex-parte. In the written statement filed by the returned candidate some preliminary objections were raised apart from controverting the allegations on merits. It is averred that paras 4 to 7, 8, 12 and 13 of the petition do not raise any triable issue and that the allegations made therein lack in material facts and, therefore, the said paragraphs are liable to be struck off. It is further averred that Clauses (a) to (g) of para 17 of the petition are vague and deficient in material facts and these are also liable to be struck off. On merits, the allegations made by the petitioner have been emphatically denied.
4. On the pleadings of the parties, the following issues were framed :–
“(1) Whether the paras 5 to 8, 12 and 13 do not disclose the triable issues and are liable to be struck off in view of preliminary Objection No. 1? OPR
(2) Whether the petitioner has concealed and misstated the material facts and has not come with clean hands, if so, what effect? OPR
(3) Whether paras 17(a) to (g) are liable to be struck off under Order 6 Rule 16 being vague and deficient in material facts as required under Section 83(1) read with Section 87 of the Representation of the People Act? OPR
(4) Whether the nomination papers of Ramesh Kumar respondent No. 1, Upinder, respondent No. 2, Kamlesh, respondent No. 4, Charan Singh, respondent No. 5 and Bhale Ram, respondent No, 8 have been wrongly accepted, if so what effect? OPP
(5) Whether respondents Nos. 1, 2, 4, 5 and 8 have not taken oath after presentation of their nomination papers, if so its effect?
(6) Whether any case of re-count is made out in view of allegations levelled in para 17(a) to (g)? OPP
(7) Whether the election of respondent No. 1 is liable to be set aside and the petitioner is liable to be declared elected on the basis of grounds mentioned in the Election Petition? OPP
(8) Relief.”
5. Counsel for the parties did not want to produce any evidence on issues 1 to 3 and on their request they were treated as preliminary issues. These issues came up for hearing on February 3, 1997 and the same were ordered to be struck off as redundant. Thereafter, the parties produced their evidence both oral and documentary in regard to the other issues and after considering the same and hearing their counsel at length, my findings on the issues are as under :–
ISSUES 4 & 5 :
6. Since these issues are interlinked they can conveniently be disposed of together.
7. The first ground on which the election of Ramesh Kumar respondent is being challenged is that on the date of his election he was not qualified to contest the same. In para 4 of the petition it is pleaded that he filed his nomnation paper on 3-4-1996 at 12.32 P.M. as a candidate of the Samta Party whereas he was administered oath in the name of God by the Returning Officer at 12.30 P.M. on the same day. The argument of the learned counsel for the petitioner is that since the returned candidate took the oath before filing his nomination paper, the same is invalid and should have been rejected by the Returning Officer. Section 36(2) of the Act provides that the Returning Officer may at the time of scrutiny reject the nomination of a candidate if on the date fixed for the scrutiny of the nominations he is not qualified for being chosen to fill a seat under Article 173 of the Constitution. Article 173, amongst others, provides that a person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he is a citizen of India and makes and subscribes before some person authorised in that behalf by the Election Commission on oath or affirmation according to the form set out for the purpose in the Third Schedule. This Article, however, does not expressly indicate the stage at which or the time when the oath as required under Clause (a) of this Article is to be subscribed/taken. A reading of the form of oath or affirmation along with Article 173(a) makes it clear that the requirement of making and subscribing the oath or affirmation is mandatory and that the oath or affirmation is to be made or subscribed after a candidate has been nominated. It would obviously mean that the oath or affirmation is to be made or subscribed after the presentation of the nomination paper to the Returning Officer. If the oath is taken prior to the filing of the nomination paper the same would be invalid and the person concerned will not be qualified for taking part in the elections. Now let us see what happened in the instant case.
8. It is in evidence that Ramesh Kumar respondent filed two nomination papers on 3-4-1996. Ex. PW 11/1 is one such nomination form which was filed at 12.30 P.M. The other form Ex. PW. 11/11 was filed at 12.32 P.M. The oath form of Ramesh Kumar respondent is Ex. PW. 11/2. A perusal of this document would show that he took the oath on 3-4-1996 at 12.30 P.M. It is, thus, clear that the returned candidate filed one nomination paper at 12.30 P.M. and simultaneously took the oath thereafter and that is why the Returning Officer has recorded the time of his taking the oath in the oath form Ex. PW. 11/2 as 12.30 P.M. The petitioner has not referred to in his petition the nomination form of respondent 1 which he filed at 12.30P.M. On the other hand, what he has done is that he has attached with the petition a certified copy of the nomination form which respondent 1 filed at 12.32 P.M. and also his oath form to contend that the said respondent took the oath before filing his nomination papers, but that is not so. The petitioner appeared in the witness box as PW. 11 and admitted that he applied for certified copies of all the nomination forms and oath forms filed by all the candidates and after obtaining those copies from the Election Office he filed the present petition. If this is so, it must have been known to him that Ramesh Kumar had filed one nomination paper at 12.30 P.M. whereas the other one was filed at 12.32 P.M. The fact of his filing a nomination paper at 12.30 P.M. has been withheld by the petitioner only to make out a case that the respondent took the oath before the filing of his nomination paper. I have, therefore, no hesitation in holding that the petitioner has not come to this Court with clean hands. He has suppressed a material fact to project a factually wrong position.
9. Reference may now be made to the oral evidence led by the petitioner in this regard. Two witnesses have been produced to show that respondent 1 was not given the oath by the Returning Officer. It is surprising that having pleaded in the petition that respondent 1 took the oath in the name of God before filing his nomination paper the petitioner has chosen to lead oral evidence contrary to his pleadings to show that the said respondent did not take the oath at all. Dilbag Singh PW. I has stated that he filed his nomination paper and was present in the office of the Returning Officer on 3-4-1996 when respondent 1 filed his nomination papers. He has stated that respondent 1 was not administered the oath by the Returning Officer. This witness cannot be believed because it is petitioner’s own case that respondent 1 was given the oath by the Returning Officer. Laxmi Chand PW. 2 has not stated whether respondent 1 was given the oath or not. His testimony is, therefore, of no value. The controversy whether respondent 1 at all took the oath and whether he took it before or after filing his nomination papers need not detain us any further because the petitioner himself while appearing in the witness box as PW. 11 admitted that “Ramesh Kumar submitted the nomination paper first and thereafter took the oath”. It is true that in the next breath he said to the contrary and tried to wriggle out of this admission, but having watched his demeanour in Court the later part of his statement cannot be believed. Respondent 1 appeared in the witness box and stated categorically that he filed two sets of nominations at 12.30 P.M. and 12.32 P.M. and immediately on the submission of his first set of nomination papers the Returning Officer administered the oath to him at 12.30 P.M. In my opinion, his statement has to be accepted as the same is supported by the certificate given by the Returning Officer in the oath form which is Ex. PW. 11/2. I cannot resist observing that the petitioner is not a truthful witness and took somersault a few times during the course of his statement. Admittedly he filed two nomination papers one on 29-3-1996 and the other on 3-4-1996 and he admitted this fact in his examination-in-chief. In the cross-examination he was asked a question as to who were the persons who accompanied him when he filed his nomination paper on 3-4-1996. In order to avoid giving the names of those persons he even denied having filed a nomination paper on that day. No reliance can thus be placed on his statement when he is out to deny even the obvious.
10. In view of the fact that respondent 1 had filed a nomination paper at 12.30 P.M. as well which is Ex. PW 11/1, the ground of challenge in regard to the respondent not being qualified to be chosen to fill a seat in the State Legislature must fail.
11. It was then contended by the learned counsel for the petitioner that since respondent 1 filed his nomination paper at 12.30 P.M. he could not take the oath at the same time as the Returning Officer must have taken some time in scrutinising the same as is enjoined upon him under Subsection (4) of Section 33 of the Act. The argument is that if the nomination paper was filed at 12.30 P.M. the Returning Officer to satisfy himself that the names and electoral roll numbers of the candidate and his proposer were the same as entered in the electoral rolls must have taken a few minutes and thereafter he must have administered the oath to the returned candidate which could not be at 12.30 P.M. as indicated in his oath form Ex. PW. 11/2. This argument is devoid of merit and cannot be accepted. Firstly, the case pleaded in the petition is that respondent 1 took the oath before filing his nomination paper. The petitioner cannot be allowed to change his stand and now contend that the oath was not administered at the same time when the nomination paper was filed. Secondly, even if this contention is allowed to be raised the same has no merit. The Returning Officer has not appeared in the witness box and no one can say how much time he took in comparing the name and electoral roll numbers of the candidate and his proposer with the entries in the electoral roll. The possibility of this work having been done by his staff cannot be ruled out and may be that the nomination paper was presented at 12.30 P.M. and immediately on its presentation the returned candidate took the oath. Again, it is possible that the oath might have been taken a few seconds after 12.30 P.M. and the Returning Officer in the oath form may not have been that meticulous so as to mention those few seconds as well. All these are matters of conjecture and we cannot delve into them in the absence of the statement of the Returning Officer. The onus to prove that respondent 1 did not take the oath at 12.30 P.M. as shown in the oath form Ex. PW. 11/2 was on the petitioner and in the absence of any evidence led by him he must fail and it has to be held that the oath was administered to respondent 1 at the time as is shown in the oath form which contains a certificate of the returning officer in this regard. 12. Mr. Ram Chander, Advocate appearing on behalf of the petitioner also contended that from the oath form Ex. PW. 11/2 it is not clear whether the oath was given to respondent 1 in the name of God or on solemn affirmation. The argument indeed is that since the words “swear in the name of God” and “solemnly affirm” were both allowed to stand and one of the two alternatives in the oath form has not been scored off, it must be presumed that no oath was administered to the returned candidate and the certificate of the Returning Officer as contained in Ex. PW 11/2 is vague, ambiguous, uncertain and cannot be relied upon. The learned counsel referred to the judgments of the Supreme Court in Aad Lal v. Kanshi Ram AIR 1980 SC 1358 and Sheikh Abdul Rehman v. Jagat Ram Aryan, AIR 1969 SC 1111, in support of his contention. The argument is being noticed only to be rejected. The petitioner has himself admitted in para 4 of the petition that oath was given to respondent, 1 in the name of God. In this situation, even if one of the two alternatives is not scored off by the Returning Officer it will make no difference and from this fact alone it cannot be inferred that no oath was given. Moreover, one fact is established and that is, that respondent 1 took the oath. He either took it in the name of God or on solemn affirmation and oath in either of the two forms is valid. I have carefully gone through the judgments of the Supreme Court in Aad Lal’s case and Sheikh Abdul Rehman’s case (supra) and, in my opinion, they do not in any way advance the case of the petitioner or support the contention of his learned counsel.
13. In view of my aforesaid discussion I hold that respondent 1 filed one of his nomination papers at 12.30 P.M. and soon thereafter he was given the oath by the Returning Officer as certified by him in the oath form Ex. PW. 11/2 and that he was qualified to be chosen to fill a seat in the State Legislative Assembly.
14. The next ground on which the election of the returned candidate has been challenged is that the nomination papers of respondents 2, 4, 5 and 8 were wrongly accepted. It is alleged in para 7 of the petition that Upender respondent 2 filed his nomination paper on 3-4-1996 at 1.20 P.M. as a candidate of Janhit Morcha but did not take or subscribe the oath or affirmation thereafter as is required by Article 173 of the Constitution and was, therefore, not qualified to contest the election. This plea has not been substantiated but even if it were to be accepted the election of the returned candidate cannot be set aside. Upender was one of the candidates who contested the election and lost the same. Even if his nomination paper was wrongly accepted the election of the returned candidate could be set aside only if it is alleged and proved that the wrongful acceptance of the nomination paper materially affected the result of the election in so far as it concerns the returned candidate. It has nowhere been pleaded in the petition that the alleged wrongful acceptance of nomination paper of Upender has materially affected the result of the election. It was necessary for the petitioner to plead and prove that the votes polled by Upender would have been polled by the former if the nomination paper of Upender had not been wrongly accepted. There is no such plea in the petition though it is inevidence that Upender polled 2111 votes. In the absence of such a plea this ground of challenge must fail. However, when we examine the evidence on the record it is clear that the nomination paper of Upender was rightly accepted by the Returning Officer. Ex. PW. 11/7 is his nomination paper and Ex. PW. 11/8 is his oath form. A bare perusal of these documents makes it clear that the nomination paper was filed at 1.20 P.M. and oath was taken simultaneously at the same time. The oath form contains a certificate of the Returning Officer that oath was taken by Upender ay 1.20 P.M. In the case of respondent I, I have already held that oath could validly be taken immediately on the presentation of the nomination paper and that the same does not become invalid merely because the time of its presentation and the recorded time when the oath is taken is the same. For the same reasons it must be held that the nomination paper of Upender was rightly accepted. In the case of Upender as well, the words “swear in the name of God” and “solemnly affirm” have been allowed to stand in his oath form and none of the two alternatives has been scored off. The argument of the learned counsel for the petitioner was that the oath form is vague, ambiguous, uncertain and could not be relied upon and, therefore, it should be presumed that Upender did not take the oath. Similar argument in the case of respondent 1 has been rejected and for the same reasons and in view of the certificate of the Returning Officer as contained in the oath form Ex. PW 11/81 reject the argument in the case of Upender as well.
15. It is then alleged that the nomination papers of Smt. Kamlesh respondent 4 were also wrongly accepted as she too did not take the oath after filing her nomnation papers and was, therefore, not qualified to fill a seat in the State Legislative Assembly. It is in evidence that she filed three nomination papers which are Ex, PW 11/3, Ex. PW 11/13 and Ex. PW 11/14. These were filed at 12.40 P.M., 12.41 P.M. and 12.42 P.M., respectively. Her oath form is Ex. PW 11/ 4. It is clear from her oath form that she took the oath at 12.40 P.M. immediately on the presentation of her first set of nomination forms. In her case as well the words “swear in the name of God” and “solemnly affirm” have been allowed to stand and none of the two alternatives has been scored off. For the reasons already stated in the case of respondent 1, 1 hold that her nomination paper was validly accepted and that she took the oath at 12.40 P.M. immediately after presenting her nomination form Ex. PW. 11/3. In the case of Smt. Kamlesh as well, the petitioner has not alleged that by wrongful acceptance of her nomination paper the result of the election was materially affected. It is also not alleged that the votes polled by her would have been polled by the petitioner. In the absence of such pleas the election of the returned candidate cannot be set aside even if it is assumed (though I have held to the contrary) that her nomination paper was wrongly accepted.
16. Again, in para 6 of the petition it is alleged that Bhale Ram respondent 8 filed his nomination paper on 3-4-1996 at 11.15 A.M. as a candidate of the Indian National Congress and that he did not take oath or affirmation as provided under Article 173 of the Constitution and was, thus, ineligible to contest the election. This candidate filed two sets of nomination papers which are Ex. PW 11/5 and Ex. PW 11/16. These were filed at 11.15 A.M. and 11.17 A.M., respectively on 3-4-1996. He took the oath at 11.18 A.M. as is clear from the oath form Ex. PW 11/6 containing a certificate of the Returning Officer to that effect. A perusal of the oath form makes it clear that the candidate (Bhale Ram respondent 8) took the oath or affirmation according to the form set out for the purpose in the Third Schedule of the Constitution and that the same was in order. He was, thus, eligible to contest the election and his nomination paper was rightly accepted. In the case of Bhale Ram as well, the petitioner has not alleged that by wrongly accepting his nomination paper the result of the election has been materially affected. This candidate secured 3738 votes and it is nowhere pleaded that these votes would have been polled by the petitioner if the nomination paper of this respondent had not been wrongly accepted.
17. It is also the case of the pettioner that the nomination paper of Charan Singh respondent 5 was improperly accepted because he did not make and subscribe the oath or affirmation after filing his nomination form as provided by Article 173 of the Constitution and was, therefore, not qualified to contest the election. Here again, the allegation is not correct. Ex. PW. 11/9 is his nomination paper which was filed at 11.20 A.M. He thereafter took the oath at 11.21 A.M. as is clear from the oath form Ex. PW. 11/10 which contains a certificate of the returning Officer to this effect. It is true that none of the two options as referred to in the oath form regarding the manner in which the oath was taken has been scored off but this fact by itself does not prove that the candidate was not given the oath as alleged by the petitioner. It must, therefore, be held that the nomination paper of Charan Singh respondent 5 was validly accepted and that he was eligible to contest the election as he was given the oath after filing the nomination paper. Even if one were to assume that the nomination paper was wrongly accepted, the petitioner has not alleged that wrongful acceptance of the nomination paper of this candidate had materially affected the result of the election. It has also not been pleaded that 1530 votes polled by this candidate would have been polled by the petitioner had the nomination paper of the former not been improperly accepted. In the absence of such pleadings the election of the returned candidate cannot be set aside.
18. In view of my aforesaid discussion, issues 4 and 5 are decided against the petitioner and in favour of respondent 1.–
ISSUES 6 AND 7 :
19. Shri Anil Kumar Malik, IAS, Additional Deputy Commissioner-cum-Chief Executive Officer, District Rural Development Agency (DRDO). Disrrict Sonepat was the Returning Officer. As Additional Deputy Commissioner he’ was also the Executive Officer of Zila Parishad, District Sonepat. He is married to the daughter of Kishan Chand Mor of Village Baroda Mor. It is alleged that Ramesh Kumar respondent and his family have very close friendly ties for the last three generations with the family of Kishan Chand Mor father-in-law of the Returning Officer and that Ramesh Kumar treats Mrs. Malik as his sister and visits her on occasions like Raksha Bandhan and Bhaiya Duj. It is further alleged that on account of the close family relations the Returning Officer went out of his way to help respondent 1 at the time of counting of votes. He is said to have appointed his father-in-law’s confidants from Hindu Senior Secondary School Sonepat and Hindu College Sonepat as members of the counting staff. He is further alleged to have appointed his own subordinates from the office of DRDO andZila Parishad Sonepat to assist him at the time of counting. Names of the persons so appointed have been mentioned in para 14 of the petition. The Returning Officer is said to have called on the day of counting i.e. 8-5-1996 the counting staff at 7.00 A.M. and the counting supervisors at 7.40 A.M. in the counting hall and instructed them to do their best to get respondent 1 elected. It is further alleged that the Returning Officer told the counting staff that the contest in the election was between the petitioner and respondent 1 and that in order to ensure the victory of Ramesh Kumar they should mix the votes of the petitioner in the bundles of Ramesh Kumar and if any complaint was made, he would not entertain the same. The counting supervisors are said to have assured the Returning Officer that they would do their best to have respondent 1 elected. This conversation between the Returning Officer and the counting staff is said to have been overheard by Jai Karan son of Garkha Ram PW 5 who was the counting agent of the petitioner and he is said to have reached the counting hall at 7.30 A.M. on the day of counting. According to the allegations in the petition the Returning Officer is said to have made it known at the very outset that any person making complaints time and again would be turned out of the counting hall and directed that counting agents of national parties would sit near the counting tables and those belonging to the State parties would sit in the back row and this, according to the petitioner, was done so that his counting agents could not supervise the counting properly as he belonged to a State party. It is further alleged that as per the directions of the Returning Officer the counting supervisors from the very beginning started mixing the votes stamped in favour of the petitioner in the bundles of respondent 1 and separated the smudged ballot papers duly stamped against the symbol of the petitioner and got them rejected from the Returning Officer on the ground that the ballot papers bore thumb marks by way of identification of the voters. The Returning Officer is also said to have rejected the ballot papers which were doubly stamped and half marked against the symbol of the petitioner and thereby wrongly counted the votes polled in his favour. The number of votes which, according to the petitioner, were wrongly rejected on each table and in each round of counting have been mentioned in para 17 of the petition. It has also been alleged that ballot papers having clear marks of identification which were polled in favour of respondent 1 were wrongly accepted. The number of such ballots has been given in para 17 of the petition, Shri Ram Phal Mor who was the election agent of the petitioner is said to have submitted a written application to the Returning Officer for recounting the votes but that, according to the petitioner, was neither diarised nor was the recounting allowed. It is alleged that the petitioner also moved a similar application but no recount was allowed. He then telephoned to the Chief Electoral Officer, Haryana and also Shri T.N. Seshan the then Chief Election Commissioner of India pointing out the various irregularities committed during the course of counting and requested that a recount be ordered. On these allegations the petitioner has made a prayer that the votes be ordered to be recounted and he is sanguine that on such a recount it will be found that he polled more votes than the returned candidate and, therefore, a further prayer has been made that he be declared elected to the State Assembly.
20. In the written statement filed by the returned candidate the allegations about various irregularities pointed out in the petition have been controverted and it is averred that the votes were properly counted and that no case for a recount has been made out and that respondent 1 was rightly declared as elected to the State Assembly. It is further stated that in all the sub-paras of para 17 of the petition the petitioner has not given the details of ballot papers which were wrongly rejected and all other ballot papers which were liable to be rejected.
21. It is well settled that an order for inspection and recount of ballot papers cannot be made as a matter of course because such an order affects the secrecy of the ballot which is not to be lightly-disturbed and also because the Rules provide for an elaborate procedure for counting of such papers which contain so many statutory checks and balances and mere is an effective safeguard therein against anyone deliberately misconducting himself. The question as to when scrutiny and recount could be ordered came up before the Apex Court in Suresh Prasad Yadav v. Prakash Mishra, AIR 1975 SC 376 and it would be fruitful to refer to the observations made by’ their Lordships in this regard which are as under :—
“Although no hard and fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court may be indicated thus :
The Court would be justified in ordering a recount of the ballot papers only where :
(1) The election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) 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
(3) 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.”
22. Same principles of law were enunciated in Bhabhi v. Sheo Govind, AIR 1975 SC 2117 and N. Narayanan v. S. Semmalai, AIR 1980 SC 206.
23. Now the question to be considered is whether the petitioner in the instant case has given adequate statement of material facts on which the allegations of irregularities and illegalities in counting are founded and whether there is any evidence which prima facieestablishes the allegations.
24. Reference has already been made to the allegations made in the petition. It has been alleged that the Returning Officer was well disposed towards respondent 1 and had good family relations with him for the last three generations and it is for this reason that he was out to help respondent 1. The number of ballot papers which, according to the petitioner, were improperly rejected at different counting tables has of course been mentioned in the various sub-paras of para 17 and the grounds for their rejection have been broadly mentioned but no further details of the rejected ballots have been furnished. The serial numbers of the ballot papers have not been given. Sub-rule (3) of Rule 56 of the Conduct of Elections Rules, 1961 (hereinafter referred to is the Rules) requires that before rejecting any ballot paper the Returning Officer shall allow each counting agent present a reasonable opportunity to inspect the same. In the Handbook for Returning Officers contai ning the instructions Of the Election Commission the Returning Officers have been told to give a reasonable opportunity to the candidate or his agent present at the table to inspect the rejected ballots. They have been further told that if the agents want to note down the serial numbers of any ballot paper on the ground that it is of doubtful validity for any reason or wrongly rejected they should allow them to do so. It is in the statements of witnesses produced by the petitioner that all doubtful votes were being taken by the counting staff to the Returning Officer who was cither counting those votes in favour of a candidate or rejecting them. It is not the case of the petitioner that the rejected ballot papers were not shown to him or to his counting agents/election agent at the time of rejection. His agents should have, therefore, noted down all the particulars of the rejected ballots if accordingly to them they were being wrongly rejected or were being improperly accepted for the benefit of respondent 1. This not having been done, the petitioner has not furnished and could not have furnished those particulars in the petition. In this view of the matter, it can be safely presumed that no irregularities were committed at the time of counting and that the allegations made by the petitioner are an afterthought. No doubt, the reasons on which the ballot papers are said to have been improperly rejected have been broadly mentioned in the petition but the averments are so general that by themselves they cannot be taken as sufficient particulars of the rejected ballots. The mere mention of the number or ballots allegedly improperly accepted or rejectedl is not enough to justify an order for recount. 25. The petitioner has produced 6 witnesses PW. 5 to PW. 10 besides appearing himself as PW. 11 to prove the irregularities which, according to him, were committed during the course of counting. PW 5 is Jai Karan who was the counting agent of the pettioner at table No. 7. He is the witness who claims to have overheard the Returning Officer instructing the counting staff to ensure the victory of respondent 1. He has stated that ballot papers which were double marked against the name of the petitioner were rejected by the Returning Officer whereas those which were double marked in favour of respondent 1 were accepted. According to this witness the ballots bearing stamps which were tilting downwards towards the column of respondent I but which were marked in favour of the petitioner, were counted in favour of respondent 1. He neither stated the number of such ballots which were improperly accepted or rejected nor did he furnish other particulars like serial numbers etc. of other ballot papers. This witness is said to have prepared notes at the time of counting in which he recorded the details of the irregularities committed during the course of counting. These notes have not been referred to in the petition nor were they relied upon by the petitioner nor a copy thereof attached with the declion petition. A piece of paper purporting to be the notes prepared by this witness was sought to be produced for the first time when he appeared in the witness box but this was not allowed because of its not having been produced or relied upon earlier. This witness also stated that the petitioner made a complaint in writing to the Returning Officer pointing out the various irregularities which were committed and asked for a recount. The said complaint has not seen the light of the day nor has it been produced on the record. PW 6 to PW 10 who were the counting agents of the petitioner at the other tables have also in their statements referred to the same irregularities as stated by PW 5. PW 6 did not prepare any record of the alleged irregularities at the time of counting whereas PW 7 who is an advocate says that he had written down the total number of votes which had been declared invalid and also the grounds on which they were held to be invalid. He is said to have given a photo copy of his notes to the petitioner and retained the original with him. Similarly, PW 8 to PW 10 had also prepared notes in their own hand in which they are said to have noted down the various irregularities. They too gave photo copies of their notes to the petitioner and retained the originals. It is surprising to note that all these witnesses have lost the originals of their notes and the photo copies allegedly given by them to the petitioner have not been produced by him on the record. Those photo copies were not produced with the petition nor have they been referred to therein. It is again surprising to note, as stated by PW 9, that while noting down the irregularities they did not note the serial numbers of the ballot papers which were improperly rejected or wrongly accepted. PW 7 is an advocate and when he prepared the notes at least he should have noted down the serial numbers of the votes which were wrongly accepted in favour of respondent 1 or improperly rejected. Having gone through the statements of these witnesses which do not inspire any confidence, I am of the firm view that this story of preparation of notes by the counting agents at the time of counting is an after-thought and that no such notes were ever prepared as alleged. The case of the petitioner as supported by PW 5 to PW 10 is that a complaint in writing was made to the Returning Officer pointing out the irregularities and asking for a recount. That complaint has not been produced on the record and if the said complaint was not being entertained by the Returning Officer as stated by the petitioner, then he should have lodged a complaint with the Election Commission. Admittedly that was not done.
26. There is yet another reason why the statements of PW 5 to PW 11 cannot be relied upon. No doubt, all of them have stated that several irregularities were committed during the course of counting but from the statements of PW 9 and PW 10, it is clear that the allegations are without any basis. PW 9 has admitted in his cross-examination that after every round of counting the Returning Offcer was getting a counting satisfaction certificate signed from all the counting agents of all the candidates to the effect that they (counting agents) were fully satisfied with the counting which had been fairly and properly conducted and that they had no grievance in that regard. In case any counting agent had any grievance it was open to him not to sign the same. PW 9 has also admitted that he as a counting agent of the petitioner had signed all those certificates which are Ex. PW9/1 to PW9/ 7, When this witnesses had signed the counting satisfaction certificates no question of any irregularities would arise and it would not lie in the mouth of the petitioner to make such allegations. It is true that PW 9 was the counting, agent at table No. 4 and was deposing in regard to what had happened on that table but similar certificates have been signed by the counting agents of the other candidates including the petitioner on the other tables as well. For instance, PW 10 had also signed two such certificates which are Ex. PW 10/1 and PW 10/2 as admitted by him and he was the counting agent on table No. 3. It appears that he signed the other certificates as well but he did not admit his signatures thereof.
27. For the aforesaid reasons I am unable to rely on the statements of PW 5 to PW 11 and consequently hold that no reliable evidence has been led by the petitioner which would prima facie establish the allegations of irregularities. The irregularities now alleged in the petition are an after-thought only to make out a ground to challenge the election of respondent 1.
28. Again, before any recount of the ballots can be ordered by the Court, it is necessary that the petitioner must establish that he moved the Returning Officer for such a recount pointing out the grounds on which a recount was asked for. In the present case, the petitioner while appearing as his own witness as PW 11 has stated that he filed an application which was not entertained by the Returning Officer. His version has been supported by some of his witnesses but I have already disbelieved this version of the petitioner. I, therefore, hold that the petitioner has failed to prove that he moved the Returning Officer for a recount of the ballot papers.
29. Petitioner has also alleged that the Returning Officer had instructed the counting staff to make an all out effort to help respondent 1 because of his personal relations with him. Apart from the bald statements of the petitioner there is no evidence on the record to prove that the Returning Officer had any personal relations with respondent 1. The respondent appeared as his own witness and denied the allegations. I have already observed that the statement of the petitioner in the circumstances of the case cannot be believed on many counts. Thus, I cannot but hold that the petitioner has failed to establish the fact that the Returning Officer had personal relations with respondent 1 on account of which any undue help was given to him.
30. In the result, it must be held that the petitioner has miserably failed to make out a case for recounting the votes and consequently issues 6 and 7 are decided against him and in favour of respondent 1.
31. In view of my findings on issues Nos. 4 to 7 the election petition fails and the same is hereby dismissed. Respondent 1 will have his costs from the petitioner which are assessed at Rs. 25,000/-.