JUDGMENT
R.K. Patra, J.
1. By this election petition, the petitioner calls in question the election of the returned candidate-respondent No. 1 from 130-Jharsuguda Assembly Constituency.
2. The case of the petitioner is that the Election Commission of India in December, 1994 announced the programme for holding general election (11th) to constitute a new Legislative Assembly for the State of Orissa. Accordingly he (petitioner) and respondents 1 to 6 filed their respective nominations for contesting the election from the 130-Jharsuguda Assembly Constituency. Their nominations were found valid and accordingly all their names were included in the list of validly nominated candidates. The petitioner was the nominee of Janata Dal. His party symbol was ‘Wheel’ (Chakra). Respondent No. 1 was the nominee of Indian National Congress (Congress I) having party symbol ‘Hand’. Respondent No. 2 was the nominee of Bharatiya Janata Party whose symbol was ‘Lotus’. Respondent No. 3 was an independent candidate whose election symbol was ‘axe’. Respondent No. 4 was a candidate of Koshal Party whose election symbol was ‘bow and arrow’. Respondent No. 5 was a candidate of Bahujan Samaj Party having the symbol ‘elephant’. Respondent No. 6, a candidate of CPI, had the party election symbol ‘Ears of Corn and Sickle’. The petitioner and respondents 1 to 6 contested the election which was held on 7.3.1 995. The counting of votes was held on 11.3.1995 at 8 a.m. in the Engineering School Premises, Jharsuguda. The final result sheet in Form No. 20 was declared on 12.3.1995. As per the declaration, the total number of ballots polled for the concerned constituency including postal ballots were 1,12,385 out of which 3608 (including postal ballots) were rejected and 1,08,777 ballots were found to be valid. According to the declaration valid votes obtained by each of the candidates were as follows :
(1) Petitioner 46,330 (2) Respondent No. 1 47,171 (3) Respondent No. 2 3,915 (4) Respondent No. 3 5,144 (5) Respondent No. 4 440 (6) Respondent No. 5 585 (7) Respondent No. 6 5,193 Respondent No. 1, as per the declaration, having got 841 more valid votes than the petitioner was declared elected.
3. According to the petitioner, the result of election as declared by the Returning Officer in Form No. 20 is wholly wrong, incorrect and respondent No. 1 did not obtain the highest number of valid votes of 47,171. His election is vitiated because of commission of corrupt practices by him and/or his agents. The declaration of result in his favour is incorrect because of improper acceptance/reception of invalid and rejected votes. Rejection of valid votes which should have been counted in favour of the petitioner were counted in favour of respondent No. 1 and others.
4. Respondent No.l has filed his written statement denying the allegations made in the election petition. Respondent No. 7 the Returning Officer of Jharsuguda Assembly Constituency has also filed his written statement. Respondents 2 to 6 did not appear despite valid service of notice on them. They were accordingly set ex parte.
5. On the basis of pleadings, the following issues were framed :
(1) Whether the election petition as laid is maintainable ?
(2) Whether the election petition is liable to be dismissed for non-compliance of Sections 81, 82, 83, 84, 86, 100, 101 and 117 of the Representation of the People Act ?
(3) Whether Respondent No. 1 has committed any corrupt practice, and if so, what is the effect ?
(4) Whether there has been proper and valid counting of votes and whether respondent No. 1 has received more votes ?
(5) Whether respondent No. 1 has received 841 nos. of more valid votes than the petitioner ?
(6) Is the election petition incompetent on account of non-joinder of necessary parties ?
(7) What relief, the petitioner is entitled to ?
6. When the trial commenced on 23.8.1996, Shri Bijan Ray. learned Senior Counsel for the petitioner did not press issue No. 3 which relates to allegation of commission of corrupt practice. Accordingly, order was passed on that day stating that the said issue stands as not pressed.
The parties led their respective evidence in respect of other issues. The petitioner examined seven witnesses on his behalf. He himself was examined as P.W. 7. He also filed a number of documents in support of his case. Besides filing certain documents, respondent No. 1 examined four witnesses in support of his case including himself as R.W. 3. Seven witnesses were examined on behalf of respondent No. 7. He (Respondent No. 7) was examined as R.W. 11. Some documents were also filed by him.
7. Issue Nos. 1 and 2 :
Learned counsel for respondent No. 1 contended that the copy of the election petition served on him (Respondent No. 1) did not bear attestation by the petitioner to the effect that it is a true copy of the election petition which amounts to non-compliance of Sub-section (3) of Section 81 of the Representation of the People Act (hereinafter referred to as ‘the Act’) for which the election petition is liable to be dismissed under Sub-section (1) of Section 36 of the Act. At this stage Sub-section (3) of Section 81 of the Act may be referred to :
“(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.”
On a bare reading of the aforesaid provision it becomes clear that the requirement of it is that (i) the election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition, and (ii) every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
7. The contesting respondents do not dispute the compliance of the first part. The controversy is with regard to compliance (non-compliance) of the second part. Respondent No. 1 exhibited the copy of the election petition received by him as Ext. A/1. On verification, I find that it is a xerox copy of the original election petition filed in the Court. Each of its pages contains the signature of the election-petitioner but the attestation, i.e., ‘true copy’ is not mentioned above his signature. Is absence of the words ‘true copy’ above the signature of the election petitioner in Ext. A/1 fatal to the election petition? Exactly a similar question came up for consideration before the Constitution Bench of the Supreme Court in C.H. Subba Rao v. Member, Election Tribunal, Hyderabad, AIR 1984 SC 1027. In that case also although copies were signed by the election petitioner, there was no attestation in the sense that the words ‘true copy’ were not mentioned above the signature. The Supreme Court held that as the signature in original was there in the copy, presence of such original signature in the copy was sufficient to indicate that the copy was attested as a true copy even though the words ‘true copy’ were not written above the signature of the petitioner. It was further held that there was substantial compliance of Section 81(3) of the Act. The aforesaid principle was again reiterated in another Constitution Bench of the Supreme Court in Dr. Anup Singh v. Abdul Ghani, AIR 1965 SC 815. A similar question came up for consideration before the Constitution Bench of the Supreme Court in T.M.Jacob v. C. Paulose, 1999 (2) SCALE 597 where it has been held that an election petition cannot be dismissed in limine Under Section 81(3) of the Act where there had been substantial compliance with the requirement of Section 81(3) thereof. In view of the aforesaid, I am inclined to hold that omission of the words ‘true copy’ above the signature of the election petitioner in Ext. A/1 is not fatal and the election petition cannot be dismissed solely on that ground.
8. It was contended on behalf of respondent No. 1 that the documents enclosed to the copy of the election petition – Ext. A/1 were not personally attested by the election petitioner. It was also submitted that some words in the copy of the election petition were not visible. The respondent No. 1 in his evidence while exhibiting the copy of the election petition (Ext. A/1) deposed as follows :
“The documents enclosed to this petition and served on me have not been personally attested by the election petitioner.”
As has been held by the Supreme Court in Smt. Sahadrabai Rai v. Ram Singh Kharwar : AIR 1968 SC 1079, where details of averments too compendious for inclusion in the petition are included in the schedule or annexure, the schedule or annexure in that case must be treated as integrated with the election petition and must comply with the requirement of Section 83(3) and Section 81(3) failing which the provision of Section 86(1) would stand attracted. But this does not apply to a schedule or annexure which produces a document as evidence in support of the allegation in the election petition. Such a schedule or annexure cannot be described as integrated with the election petition and defect in verification thereof would not prove fatal. The aforesaid ratio was followed by the Supreme Court in U.S. Sasidharan v. K. Karunakaran : AIR 1990 SC 924 and in F.A. Sapa v. Singora : AIR 1991 SC 1557. It is not in dispute that the documents enclosed to Annexure-A/1 do not contain the signature of the election petitioner. Sub-section (2) of Section 83 of the Act provides that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. Shri Ray, learned counsel for the election petitioner, contended that the documents enclosed to the election petition do not constitute integral part of the election petition and in any case they (documents) relate to the allegation of corrupt practices which was not pressed by the election petitioner vide Court’s order No. 31 dated 23.8.1996. I have examined the rival contentions of the parties. On a reading of the documents enclosed to the election petition I am of the opinion that they cannot be described as integrated with the election petition. They were enclosed as documents in evidence in support of the allegation made in the election petition. Besides this, those documents principally relate to the allegation of corrupt practices which the petitioner did not press vide Court’s order dated 23.8.1996.
9. Regarding the allegation that some words in Annexure-A/1 were not legible, it may be stated that they were not of fatal nature. Respondent No. 1 in his evidence has not whispered a word that on account of such lapses in his copy, he was prejudiced in any manner. For these reasons, the preliminary objection regarding maintainability of the election petition is over-ruled.
10. Issue Nos. 4 to 5 :
A Constitution Bench of the Supreme Court in Ram Sewak Yadav v. Hussain Kamil Kidwai : AIR 1964 SC 1249 held as follows :
“An order for inspection may not be granted as a matter of course : having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled:
(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and
(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.
But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.”
While interpreting Section 94 of the Act, the Supreme Court in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra : AIR 1980 SC 1362 held as follows :
“The interpretation of Section 94 which appeals to us ensures free and fair elections. Secrecy of ballot was mooted to ensure free and fair elections. If the very secrecy of ballot instead of ensuring free and fair elections strikes at the root of the principle of free and fair election this basis postulate of democracy would be utilised for undoing free and fair elections which provide life-blood to parliamentary democracy. If secrecy of ballot instead of ensuring fee and fair elections is used, as is done in this case, to defeat the very public purpose for which it is enacted, to suppress a wrong coming to light and to protect a fraud on the election process or even to defend a crime, viz., forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of free and fair elections.”
As held by the Supreme Court in D. P. Sharma v. The Commissioner and Returning Officer ; AIR 1984 SC 654, in order to obtain recount of votes a proper foundation is required to be laid by the election petitioner indicating the precise material on the basis of which it could be urged by him with some substance that there has been either improper reception of invalid votes in favour of the elected candidate or improper rejection of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidates which had in reality been cast in favour of the defeated candidate.
In P.K.K. Shamsudeen v. K.A.M. Mapillai Mohindeen : AIR 1989 SC 640, the Supreme Court observed :
“Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes.”
11. Keeping in view the aforesaid legal position, let me examine whether the election petitioner has been able to make out a case for recounting. In paragraphs 6 and 8 to 18 of the election petition irregularities in counting, improper reception of votes in favour of respondent No. 1 and refusal/rejection of valid votes of the election petitioner have been pleaded in detail. In paragraph-6, it was alleged that Form No. 20 was fabricated and respondent No. 1 had not received 47,171 number of valid votes. In paragraph-8 it was stated that there was irregular, illegal and careless counting which has vitiated the declaration of respondent No. 1 as the elected candidate. In paragraph-9, it was alleged, inter alia, that on initial counting 1,12,416 number of ballots were found to have been used in all the 199 booths but in detail counting only 1,12,385 were considered . About 800 number of ballots with no mark, mark in the blank area, mark against two or more candidates were counted in favour of respondent No. 1. In paragraph 10 it was stated that 455 ballots found from the box of booth No. 190 carrying the distinguishing mark 129/ 130 were substituted. These are the main allegations pleaded in the election petition.
12. Learned counsel for the petitioner contended that there was total violation, wilful infringement and non-compliance of different provisions of the Act, the Rules and Orders which amounted to fraud on election process.
Shri Mukherjee, learned counsel for the respondent No. 1, submitted that there is no pleading to that effect and details of fraud were not indicated in the election petition.
13. On careful perusal of the election petition, I am of the opinion that adequate foundation has been laid by the petitioner in support of his allegation that there was violation and non-compliance of the relevant provisions of the Act. In paragraph-6 of the election petition, the petitioner has referred to Form No. 20 and has alleged that the same is wrong, incorrect and fabricated. In paragraph 10 it was alleged that ballot papers found from ballot box of polling booth No. 190 contained ‘No. 129’ instead of ‘No. 190’ which indicated that ballots meant for booth No. 129 were inserted illegally in ballot box of booth No. 190. On bare perusal of paragraphs 11, 12, 13, 14 and 15 to 18, it would appear that material particulars in support of the allegation were furnished. I am, therefore, not inclined to accept the aforesaid contention of learned counsel for respondent No. 1.
14. Rule 33 (5) of the Conduct of Election Rules, 1961 provides that every ballot box used at a polling station shall bear labels both inside and outside, marked with, inter alia, the serial number, if any, and name of the constituency, serial number and name of the polling station, serial number of ballot box and the date of poll. The Election Commission of India’s instruction (contained in Compendium of Election Commission’s Additional and Special Instructions (Volume-II) at page 16) provides that number of ballot boxes are to be engraved and not painted. R.W. 4, the Election Agent of respondent No. 1, (vide para 70 of his deposition) admitted that in course of counting there was commotion at table No. 1. On being invited by Kulamani Makar (R.W. 1), counting agent of Respondent No. 1. he went to table No. 1 and examined about 3 to 4 ballots. The Returning Officer also came and examined the boxes and seals and there was nothing written on the box. R.W. 9 who was the Presiding Officer of booth No. 190 stated that he along with his colleagues carried three ballot boxes and none of them contained any number. In his cross-examination he admitted this position by stating that it is not a fact that ballot boxes contained any number engraved on them. The Returning Officer (R.W. 11) in paragraph 46 of his evidence stated that ballot boxes which were issued had to carry some numbers and the said numbers were to be entered in the register meant for the purpose. The said register was not produced. Had it been done, the exact position would have emerged. Rule 36( 1) of the Conduct of Election Rules, 1961 lays down that every ballot paper before it is issued to an elector and the counterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct. Para 2.1 of Chapter VII of the Hand Book for Presiding Officers (issued by the Election Commission of India) provides that every ballot paper before it is issued to an elector, is required to be affixed the distinguishing mark on its back. Such distinguishing mark for ballot papers to be used at the polling station would indicate the serial number of Assembly constituency serial number of the booth in which the polling station is situated. The distinguishing mark has to be affixed at the top right-hand corner both on the back of counter-foils and also on the back of the ballot papers. The allegation of the petitioner is that all the 455 ballots of booth No. 190 carried wrong marking ” 129/ 130″ (it would have been 130/190) and all these ballots were mixed and counted as valid votes. R.W. 11, the Returning Officer, in para 56 of his evidence stated that to booth No. 12 distinguishing mark seal carrying No. 12/130 was supplied. Similarly, to booth No. 181 seal carrying the number 181/130 was supplied. He further stated that all the booths were issued with distinguishing mark seals in the manner aforesaid. (As already noted, as per the instructions, distinguishing mark should have indicated the serial number of the constituency/serial number of the booth.)./ Jharsuguda Assembly Constituency’s serial number is 130 and, as such, the distinguishing mark should have been 130/the relevant booth number. In para 25 of his evidence he stated that distinguishing mark seal of booth No. 129 by mistake had gone to booth No. 190 and he could know about this afterwards. In para 55 of his evidence, he stated that distinguishing mark seal carrying booth No. 129/130 was supplied to booth No. 129 and booth No. 190 was supplied with distinguishing mark of 129/130. This may suggest that double seals (129/130) were supplied to booth Nos. 129 and 190. The contention of the learned counsel for the petitioner is that the plea of wrong seal or double seal was the brain child of the Returning Officer inasmuch as no such pleading is available in his written statement. It was argued that in the Engineering School of Jharsuguda, counting of three Assembly Constituencies namely Liekera, Jharsuguda and Brajarajnagar was held simultaneously without obtaining approval of the Election Commission as required by the Election Commission’s instructions which provide that such counting can be held in one premises with prior approval of the Election Commission. The Returning Officer did not clarify if any approval or permission was obtained from the Election Commission for such counting.
15. Re : ‘actual counting’ :
It is an undisputed requirement that tables for counting should be arranged clock-wise. The allegation of the petitioner is that the tables were arranged anticlock-wise and after receipt of complaint (Ext. 11) it was reversed. It was contended that the tables were not numbered and R.W. 4 for the first time deposed in Court that the numbers were pasted on the tables. Exts. 11 and 12 are the complaints. Admittedly, R.W. 6 submitted Ext. 11 as the agent on table No. 1 and Ext. 12 as the agent of the table No. 15. The ballot boxes were issued serially to the tables as per its serial. The apprehension of the petitioner that change of table number in the midst of counting reversing the order created confusion cannot be lightly brushed aside. Form No. 20 is an important document. It is the final result sheet. It was contended on behalf of the petitioner that the said document (Form No. 20) was fabricated because (i) entries in check memos and Form No. 20 do not tally, and (ii) Form No. 20 contains number of corrections without any initials.
16. Preparation of tabulation being the final stage of counting, a contesting candidate has every right to be present at the time of counting as required Under Section 64 of the Act. R.W. 4, the Election Agent of respondent No. 1, deposed that there was another table located towards the left of the central table where a team of officials headed by the Tabulation Officer was present. The check list after being filled up was being sent to the said table and at the end of each round of counting the calculations were noted in a consolidated form in the check list which is known as From No. 20. The Returning Officer (R.W.11) stated that at the tabulation table agent of none of the candidates was allowed to sit. He tried to clarify by stating that agents of candidates were permitted to sit at all the tables except the one where tabulation work was going on. The aforesaid indicates that agents of contesting candidates were wrongly and illegally prohibited to be present at the tabulation table. It is in the evidence that 455 substituted ballot papers were recovered from ballot box No. 190. District Election Officer (R.W.5) admitted that all such things could not have happened.
17. The Election Commission of India has published Handbook for Returning Officers. It contains broad outlines of the election rules and procedures. At page 274 it states that side-by-side the work of tabulations and the result of counting should be done. The check memos duly signed by the Returning Officer shall be passed on to an Officer seated at a separate table near the Returning Officer/Assistant Officer. This Officer shall fill in the result of counting of each round on each table in Form No. 20. It is desirable that a separate sheet for each round is used for the purpose. Copies of Form No. 20 may be printed, cyclostyled or type written. The Assistant Returning Officer (R.W.7) stated that tabulation materials were supplied by the Returning Officer. In his cross-examination, he admitted that he cannot say if draft copies were made in draft Form No. 20. The Tabulator (R.W.10) stated that rough work was done on rough sheets or plain papers which were handed-over by the Returning Officer. R.W. 11 at para 85 of his evidence stated that he did not know if calculations were made on rough papers. He also could not say if draft Form No. 20 were supplied. It is, therefore, necessary to know whether posting of figures were properly done in Form No. 20. The Tabulation Officer had not submitted any rough paper with Form No. 20. Had he submitted, it could have been verified if proper posting of figures was done. Moreover, Form No. 20 does not indicate the names of candidates. Therefore, the entire process of tabulation was made contrary to the instructions referred to above.
18. At page 272 of the Handbook for Returning Officers, it is provided that by way of test check to ensure further accuracy in the counting of votes, 5 per cent of total number of bundles of valid votes of different contesting candidates shall be counted by the Returning Officer. The Assistant Returning Officer (R.W.7) in paragraph 42 of his evidence stated that he had not done test checking and it was done by the Returning Officer. R.W. 11, the Returning Officer, has not clearly stated whether he had conducted any test checking. At para 78 of his deposition he stated that when he used to come to counting hall to supervise, he used to sit at that table for one to two minutes. After lapse of half an hour, he used to come to the counting hall and used to stay for one to two minutes. He candidly admitted in para 79 of his evidence that to verify 1000 ballots, it may take one and half hours. He has further admitted that he had not done test checking in every round. For that checking of 750 ballots it would take maximum 20 to 25 minutes. The aforesaid being the position and as per his own evidence that he used to stay for one to two minutes, he could not have conducted any test check. He further tried to explain by stating that out of eight rounds, test check was undertaken 3 or 4 times and for test check of 750 ballots 25 minutes’ time was necessary. If according to him, he used to stay in the counting hall or at the table for one to two minutes, his claim that he conducted test check for 3 or 4 times has to be accepted with a pinch of salt.
19. The petitioner in paragraphs 6 and 11 of his election petition alleged that Form No. 20 was fabricated and the entries in check memo and Form No. 20 did not tally.
Form No. 20 being the final sheet of counting, should be free from any criticism. Sub-rule (7) of Rule 56 of the Conduct of Election Rules, 1961 provides that after the counting is completed, the Returning Officer shall make the entries in a result sheet in Form No. 20 and announce the particulars. The Assistant Returning Officer (R.W.7) stated that the Tabulating Officer made the entries in Form No. 20. The Tabulating Officer (R.W. 10) in his evidence (vide paragraphs 15 and 16) admitted that he had no experience of tabulations and he could not say if he was appointed as Designated Officer to handle Form No. 20. He stated (vide para 23) that the assistants who were with him carried over the figures from rough sheets to Form No. 20 under his supervision. In paragraph 12 of his deposition he stated that he cannot say if S.R. Gonda and J. Sahu were assisting him at the table. According to him except two assistants, no other person was present at the table. In his evidence it was brought out that against the entry in Column ‘Ga’ in respect of fourth round, there is correction of the figure 6310 to 6130 which was not done by him. He also could not say as to who did that. He was also not in a position to say who made other corrections in the form. He also admitted that the corrections done in the last column did not bear any initial. Although he claimed to have corrected the figure 1,12,505 to 1,12,385 in the last column of Form No. 20, he admitted that the correction did not contain any initial. He also admitted that the figures above the signature of the Returning Officer in the penultimate page of Form No. 20 was corrected by applying white correcting fluid. From the aforesaid evidence, it is clear that Form No. 20 contained number of corrections without any initial and the Tabulating Officer (R.W. 10) was not in a position to explain the lacunae. From the evidence of the Assistant Returning Officer (R.W.7), Tabulating Officer (R.W. 10) and the Returning Officer (R.W.I 1), it is not clear as to who made the entries in Form No. 20. Part I and Part II of Form No. 20 do not tally nor was any attempt made to reconcile the figures. The Returning Officer (R.W.I 1) in his evidence (para 100) stated that he cannot say if S.R. Gonda was assisting him at the tabulation table. As already noted, Form No. 20 contains a number of corrections without initials and it casts doubt if there was proper posting of figures as per the check memos. The Tabulating Officer (R.W. 10) in his evidence (para 7) by referring to Form No. 20 stated that 1,12,416 number of ballot papers were used in the election but from Part-II of Form No. 20 it appears that 1,12,385 number of ballot papers were used, 3608 number of ballot papers were rejected and 1,08,777 were total valid votes. In para 21 of his evidence he stated that before making necessary entries in the prescribed tabulating form rough work was done in rough sheets which was carried over to Form No. 20. The rough sheets were handed over to the Returning Officer and as far as he could remember, the rough work was done on plain papers. He could not say if draft Form No. 20 was given for the purpose of rough tabulation. In para 23 of his deposition he stated that the assistants who were with him carried over the figures from the rough- sheet to Form No. 20 under his supervision. In para 24 he stated that in Form No. 20 there is mention of names of candidates and the candidates were described by alphabets like ‘Ka’, ‘Kha’, ‘Ga’, ‘Uan’, ‘Cha’, and ‘Chha’. According to him, the above alphabets related to the names of candidates respectively in the order they found place in the ballot papers. He admitted that he as not supplied with the copy of the ballot paper. Suggestion was made to him and he denied stating that it is not a fact that in Form No. 20 names of candidates are to be noted below the alphabets. When he was confronted with Form No. 20, he could not say which alphabet represented which candidate. Although he denied the suggestion that there could be possibility of mistake in making entries in respect of candidates, in paragraph 29 he stated by referring to Form No. 20 that in respect of 4th round, the figure ‘6310’ under heading ‘Ga’ had been sacred through and the figure ‘6130’ had been written. The Returning Officer (R.W. 11) in paragraph 85 of his evidence stated that he did not know if before filling in of the Form No. 20 calculations were worked- out in rough papers. He also could not say if the Tabulating Officers were supplied with rough Form No. 20. He also admitted that Tabulating Officials were supplied with rough Form No. 20. According to him (vide paragraph 86 of his evidence), names of contesting candidates were written in alphabetical order in the check memos and in Form No. 20 they were mentioned in the same alphabetical order as in the check memos and ballot papers and the contesting candidates were identified by alphabets ‘Ka’ to ‘Chha’. In paragraph 88 the Returning Officer candidly admitted that possibility of improper posting of figures in Form No. 20 cannot be ruled out. In paragraph 91 by looking at Form No. 20 he stated that he cannot say if the total of last column of Form No. 20 would come to ‘1,12,505’ and it has been written as ‘1,12,385’. This witness (R.W.11) stated (vide paragraph 92) that during initial counting the total number of ballots used was stated to be 1,12,416. Besides this, he in his evidence (vide para 95) stated that in para 11 of his written statement he mentioned that there were some totalling mistakes in 4th and 5th round of detailed counting and the total figure in respect of the above two rounds read respectively as 15,158 and 14,949 but actually it should read as 15,006 and 15,009. It is not the law that while giving proof of prima facie error in counting each head of error must be tested by proof beyond reasonable doubt. On the basis of the averments made in the petition supported by evidence adduced in the case, I am of the opinion that the petitioner has made out a case for recounting. Therefore, in order to decide the dispute and to do complete justice between the parties, recounting of ballot papers of the constituency in question is necessary. All these three issues are answered accordingly.
20. Issue No. 6 :
None of the contesting respondents urged that the election petition is incompetent for non-joinder of necessary parties. I also do not find that the petitioner has left out any necessary party to the case. The election petition is, therefore, maintainable. This issue is accordingly answered.
ORDER
In view of what has been stated in the preceding paragraphs, I order recount of votes of the election held on 7.3.1995 in respect of 130-Jharsuguda Assembly Constituency and appoint Shri N.P. Rout, Registrar (Inspection and Enquiry) of this Court as the Commissioner for the purpose under whose supervision the recounting proceedings will be held in this Court. The Chief Electoral Officer, Orissa, Bhubaneswar, will cause production of the ballot papers in question in this Court by 30th of June, 1999 and the recounting and other paraphernalia will be completed by 9th of July, 1999. The Chief Electoral Officer, Orissa, will provide all assistance for the purpose of recounting. The petitioner is directed to deposit a sum of Rs. 3000/- for the purpose in this Court by 25th of this month.