Baldev
Singh Vs. Shinder Pal Singh & Anr [2006] Insc 673 (19 October 2006)
S.B.
Sinha & Dalveer Bhandari
(Arising
out of SLP (C) No.24126 of 2004) S.B. Sinha, J.
Leave
granted.
An
election for the post of Sarpanch and Panches of the Gram Panchayat, Village Ransih
Khurd, District Moga was held on 29.6.2003.
Total
votes polled in both the elections were shown to be 836. The Returning Officer
found that both Appellant and Respondent No.1 had polled 412 votes each.
Respondent No.2 herein is said to have got 4 votes.
8
votes were rejected. Allegedly, a recounting was done. The result of recounting
was same as that of the first one. Returning Officer recorded the said
statement in the statutory Form No.IX prescribed in terms of Rule 33(2)(e) of
the Punjab Panchayati Election Rules, 1994. The total number of votes polled
was found to be 836 even in the election of the Panches.
Indisputably,
election was held under the Punjab Panchayati Raj Act, 1994.
The
State of Punjab in exercise of its power conferred
upon it under the said Act, framed rules known as Punjab Panchayat Election
Rules, 1994 (for short, 'the Rules'). The relevant provisions of 'the Rules'
are as under :
"33.
Counting of Votes
(1) In
a Sabha area where there is only one polling station, the Returning Officer
shall follow the following procedure for the counting of votes and declaration
of result for election to the Gram Panchayat.
(2)
The Presiding Officer shall, as soon as practicable, after the close of the
poll and in the presence of any candidate or polling agent who may be present:
(a)
..............
(b)
..............
(c)
..............
(d)
..............
(e)
After the counting of ballot papers contained in all the ballot boxes has been
completed, the Returning Officer shall record a statement in Form IX showing
the total number of votes poled by each candidate." "35. Procedure in
case of tie If, after the counting of votes is completed, votes polled by two
candidates are equal, and the addition of one vote will entitle any of these
candidates to be declared elected. The Returning Officer shall forthwith decide
between those candidates by draw of lots as the candidate in whose favour the
lot falls has received an additional vote." "38. Election Papers to
be forwarded to the District Election Officer The Returning Officer shall put
the election papers in separate packages on the outside of which shall be
endorsed a description of their contents, and after sealing them in separate
packets, forward to the District Election Officer :
a) the
ballot-papers counted as valid;
b) the
ballot-papers rejected as invalid;
c) the
unissued ballot-papers;
d) the
issued tendered ballot-papers;
e) the
spoilt ballot-papers;
f) the
cancelled/returned ballot-papers;
g) the
tendered votes list;
h) the
list of challenged votes;
i) account
of ballot-papers; and
j) the
marked copy of electoral roll."
The
Returning Officer drew lots with written consent of both the candidates, i.e.,
Appellant and Respondent No.1. Appellant was declared elected as Sarpanch of
the Gram Panchayat. However, immediately prior thereto, the supporters of 1st
Respondent allegedly raised a hue and cry, as a result whereof, the Returning
Officer could not enforce his decision. He immediately sent a fax message to
the Deputy Commissioner, Moga seeking his advice in the matter stating :
"Regarding
Panchayat Elections, for the Panchayat Election of Village Ran Singh Kurd I was
appointed R.O.I. for Nihal Singh Wala on 29.6.2003. Election was held and after
counting the votes for Sarpanch, Sh. Shinder Pal & Sh. Baldev Singh
received equal 412-412 votes. As both candidates received equal number of
votes, therefore, as per instructions result for Sarpanch was to be declared by
draw of lots. Both the candidates were called and draw was conducted before
them and one slip was drawn through another Returning Officer. As the slip in
the name of Sh. Baldev Singh came out but another candidate Sh. Shinder Pal
Singh refused to accept the decision and written paper was torn. Now this
office does not have consent paper of both candidates given for draw of lots.
It is requested to you to inform what action should be taken in this
matter." The Deputy Commissioner forwarded the said fax message to the
Sub-Divisional Magistrate, Moga for necessary action, who, in turn informed him
that the decision taken should be enforced. An endorsement to that effect was
also made by him. The result of the election was thereafter declared.
An
election petition was filed by the First Respondent herein challenging the said
election, wherein it was, inter alia, contended that only 821 votes had been
polled and Appellant herein had secured only 397 votes whereas he had secured
412 votes. It was averred :
(1) two
votes were kept aside illegally and unjustly by the Presiding Officer;
(2) votes
in respect of serial No.471 and 614 were initially counted as valid votes but
the same were later on declared invalid;
(3) rejection
of 8 votes was improper.
An
averment moreover was made that he had requested for recounting of votes, but
the Returning Officer/Polling Officer did not pay any heed thereto and, thus,
mandatory requirement of Rule 35 had not been complied with.
It is
of some significance to notice the averments made in Sub-para (v) of paragraph
(3) of the election petition, which reads as under :
"(v)
That Rule 35 read with Rule 33 of the Punjab Panchayat Election Rules 1994
provides that the Presiding Officer shall as soon as practicable after the
close of the poll and in the presence of any candidate or polling agent who may
be present shall start counting of votes and if 2 candidates poll equal number
of votes, draw of lots is to decide the winning candidate. The Returning
Officer on 30.6.2003 requested the Deputy Commissioner Moga seeking his advice
regarding the manner in which the result to be declared. It is also alleged by
the Returning Officer that written paper was allegedly torn by the petitioner
which fact is vehemently denied. The petitioner was not present when the
alleged draw of lots took place. The alleged procedure followed by the
Returning Officer for drawing of lots by asking another Returning Officer to
take out the lot is illegal.
The
mandatory provisions of Rule 35 is that Returning Officer himself shall
forthwith decide between those candidates securing equal number of votes by
draw of lots. This power of drawing of lots cannot be delegated to another
person. This objection is without prejudice to the fact that in fact petitioner
secured 412 votes.
Respondent
no.1, 397 votes and respondent no.2, 4 votes.
8
votes were allegedly rejected. The result prepared is wrong at the instance of
the respondent no.1." The election petition was verified by Respondent in
the following terms :
"Verified
that the contents of paras Nos. 1 to 6 & 9 of the petition are true and
correct to the best of my knowledge and belief and contents of paras Nos. 7
& 8 are believed to be correct from the knowledge derived from
others." Before the learned Election Tribunal, the Returning Officer, the
Sub- Divisional Magistrate, the Presiding Officer, as also the Assistant
Returning Officer were examined as R.W.2, R.W.3, R.W.4 and R.W.5.
In his
deposition, the Returning Officer, Krishan Bhagwan Kansal categorically stated
that the consent paper was torn and, thus, he had no proof to say that chit was
drawn with the consent of both the candidates. He was candid enough to admit
that the chits drawn by him were not with him stating :
"I
do not have paper chit declaring winner because that was torn I cannot tell who
had torn that chit for making toss chits bearing names of both candidates were
drawn. I do not know who torn the consent paper." R.W.3, Shri Gurnam Singh
Gill, the Sub-Divisional Magistrate proved the fax message, notice whereof has
been taken by us hereinbefore. R.W.4, Shri Jaswinder Singh was the Presiding
Officer. He supported the case of the Appellant. In his cross-examination, he stated
:
"The
counting of votes started at about 9-10 at night and finished at 11-11-1/4 at
night. The counting of votes was done twice. I cannot tell how many votes were
counted first time and how many after. Self stated whatever result is. 8 votes
were rejected. Cannot tell that how many votes were rejected during first
counting, second time 8 were rejected. I submitted result on form 9 in Nihal
Singh Wala. At that time it was submitted at 12/12.15. I do not know what
action was taken after that.
Q. Do
you have any objection if recounting is conducted ? Ans. It is for the
administration to see what has to be done." He had proved Form No.IX. He
reiterated before the Tribunal the contents thereof.
R.W.5,
Ranjit Singh, was the Assistant Returning Officer. He also stated that both the
candidates had polled equal number of votes and thereafter two slips were
prepared for drawing lots. The same were mixed up at the consent of both the
candidates. As per instructions of R.W.2, he took out the slips and when it was
opened, the name of Appellant was found who was then declared elected. The
learned Tribunal ignoring the aforementioned oral evidence of the responsible
officers, directed recounting opining :
"There
is no documentary evidence regarding conducting of toss. Neither is there
consent of the parties nor any 'parchi' which shows that toss was conducted.
Both the petitioner and the respondent no.1 allegedly secured 412 votes
conclusive evidence and satisfaction of the petitioner. Therefore, in the
circumstances it has become necessary to have recounting of votes in the
presence of both the parties, to put the issue beyond doubt as also to meet the
ends of justice." Upon recounting, First Respondent was stated to have
received 412 votes, whereas Appellant was said to have 398 votes. First
Respondent was declared to have been elected, directing :
"In
view of the above circumstances, the election staff on duty had not prepared
the result correctly on the basis of valid votes polled in favour of the
candidates.
On
recounting of the votes by the undersigned, it has been found that Sh. Shinder Palsingh,
petitioner had got 412 votes, whereas Respondent No.1 Baldev Singh had polled
398 votes and Sh. Bhola Singh Respondent No.2 had got 4 votes and 8 votes had
been cancelled. Thus Sh. Shinder Palsingh, petitioner has got 14 votes more
than Sh. Baldev Singh, Respondent No.1. Therefore, Sh. Shinder Palsingh,
petitioner is declared as elected Sarpanch of Gram Panchayat in lieu of Sh. Baldev
Singh, Respondent No.1, who had earlier been declared as Sarpanch of village Ransih
Khurd. The head of the department of Presiding Officer may be asked to take
strict departmental action against the Presiding Officer, who with malafide
intention and for his personal motive, prepared the result in favour of
respondent no.1 against the result of actual votes polled and due to this
reason the parties had to indulge in unnecessary litigation and harassment. A
copy of the order is forwarded to the District Development and Panchayat
Officer, Moga and Block Development and Panchayat Officer, Nihal Singh Wala for
necessary action. After compliance, the file be consigned to the record
room." The appeal preferred by Appellant herein was dismissed by the High
Court merely stating :
"Applying
the above principles to the present case, it is sent that there was specific
averment in the election petition that even though, 821 votes were polled, the
staff wrongly counted the same to be 836. It was also clearly stated that the
result was not declared on the same day and there was no document showing draw
of lots. The Tribunal was satisfied that recount was necessary. On summoning of
record, the averments in the election petition stood proved. Result of recount
being different does not necessarily mean that the recount was justified but it
is not possible to hold that there was no material before the Tribunal to hold
that there was prima facie case or that recount was not validly ordered. Since
the recount was validly ordered, the result thereof could be taken into
account. The contention on behalf of the appellant that due opportunity was not
given to the appellant to prove that 14 votes which were found to be less had
been lost, cannot be accepted. The appellant did not raise any such point when
sealed cover was opened or even thereafter before the Tribunal." Mr. Salil
Sagar, learned counsel appearing on behalf of Appellant contended that the
Tribunal as also the High Court acted illegally and without jurisdiction in
passing the impugned judgment in so far as they failed to take into
consideration that no case for recounting has been made out. It was pointed out
that First Respondent, at no point of time, raised any objection in regard to
the correctness of counting of votes before the Presiding Officer. He did not
file any application for recounting. The Tribunal, although, proceeded to
determine the question on the basis of the purported violation of the Rules, it
would appear from the depositions of the witnesses that they had not been
cross-examined on that question. The High Court as also the Tribunal, it was
contended, without finding any prima facie case in favour of Respondent for a
recounting, directed so and that too in utter disregard of the evidences on
record.
Mr.
S.K. Bagga, learned Senior Counsel appearing on behalf of the Respondents, on
the other hand, urged that the votes were incorrectly counted as would be
evident from the result of the recounting. The Presiding Officer, Mr. Bagga,
submitted, merely deposed about the drawing of lots, but in doing so, he had
delegated his power to the Assistant Returning Officer and thus, the entire
process was illegal. The Tribunal, keeping in view the materials on record,
thus, had rightly directed recounting of votes with a view to determine the
issue. The order of recounting was passed, it was submitted, to meet the ends
of justice and only on the basis of the result of recounting.
Election
for the post of Sarpanch and Panches are, indisputably, governed by the Punjab
State Election Commission Act, 1994.
Sections
66, 68 and 69 of the said Act read as under :
"66.
Counting of votes.- At every election where a poll is taken, votes shall be counted
by or under the supervision and direction of, the Returning Officer, and each
contesting candidate, his election agent and his counting agents, shall have a
right to be present at the time of counting." "68. Equality of
votes.- If, after the counting of the votes is completed, and the addition of
one vote will entitle any of those candidates to be declared elected, the
Returning Officer shall forthwith decide between those candidates by lot, and
proceed as if the candidates on whom the lot falls had received an additional
vote." "69. Declaration of results.- When the counting of the votes
has been completed, the Returning Officer shall, in the absence of any
direction by the Election Commission to the contrary, forthwith declare the
result of the election in the manner provided by this Act or the rules made thereunder."
Section 76 of the Act provides for presentation of an election petition on one
or more grounds specified in Sub-Section (1) of Section 89 to the Election
Tribunal. Section 78 provides for the contents of the election petition.
Clauses (a), (b) and (c) of Sub-Section (1) of the said provision reads thus :
"a)
contain a concise statement of the material facts on which the petitioner
relies;
b) set
forth full particulars of any corrupt practice that the petitioner alleges,
including a statement as possible, of the names of the parties alleged to have
committed such corrupt practice or practices and the date and place of the
commission of such practice; and c) be signed by the petitioner and verified in
the manner laid down in the Code of Civil Procedure, 1908 for the verification
of pleadings;" Section 83 provides for secrecy of voting not to be
infringed. Sub- Clauses (iii) and (iv) of Clause (d) under Sub-Section (2) of
Section 89 provide that subject to the provisions of Sub-Section (2), the
Election Tribunal is of the opinion that the result of the election, in so far
as it concerns a returned candidate, has been materially affected by the
improper reception, refusal or rejection of any vote or the reception of any
vote which is void or by any non-compliance with the provisions of the
Constitution of India or of the said Act or of any rules or orders made under
the said Act, the Election Tribunal shall declare the election of the returned
candidate to be void.
The
Election Petition was required to be verified in terms of Order VI Rule 15 of
the Code of Civil Procedure, 1908. It provides :
"15.
Verification of pleadings.
(1)
Save as otherwise provided by any law for the time being in force, every
pleading shall be verified at the foot by the party or by one of the parties
pleading or by some other person proved to the satisfaction of the court to be
acquainted with the facts of the case.
(2)
The person verifying shall specify, by reference to the numbered paragraphs of
the pleading, what he verifies of his own knowledge and "The verification
of an election petition, it was trite, must be done strictly in terms of Order
VI Rule 15 of the Code of Civil Procedure. It was, thus, incumbent on the part
of Appellant herein to specifically state as to which statements made in the
election petition were true to his knowledge and which were true to his belief.
A factual averment made in the election petition cannot be both true to the
knowledge and belief of the deponent.
We may
furthermore notice that although in the election petition it has been contended
that First Respondent had requested for recounting of votes, the officers who
examined themselves were not cross-examined on that point. The said statement
would, thus, be deemed to have been admitted.
Even
the purported illegalities which, according to Respondents, would lead to
declaration of election of Appellant herein to be void had not been put to the
witness in cross-examination.
The
question which, therefore, would arise is 'as to whether the learned Tribunal
was correct in directing recounting?' The officers had categorically stated
that consent paper was torn. The fax message which has been sent immediately to
the Collector of the District was a contemporaneous document, the genuineness
whereof has not been questioned. Apart from the statutory Form, even in the
said fax message the Returning Officer was categorical in his statement that
both the candidates have received equal number of votes and thus, the result of
the election to the post of Sarpanch was declared by draw of lots. It also
mentioned about the tearing of the written paper on which consent had been
given and only in the aforementioned situation, sought for guidance as to what
action should be taken in the matter. The official act should be presumed to
have been done in the ordinary course of business. A recounting, as is well
known, should not ordinarily be directed to be made. There exists certain
limitation in this behalf.
The
question came up before this Court in M. Chinnasamy vs. K.C. Palanisamy &
Ors. [(2004) 6 SCC 341], wherein this Court opined :
"The
question as to what would constitute material facts would, however, depend upon
the facts and circumstances of each case. It is trite that an order of re-
counting of votes can be passed when the following ingredients are satisfied:
(1) if
there is a prima facie case;
(2) material
facts therefor are pleaded;
(3) the
court shall not direct re-counting by way of roving or fishing inquiry; and
(4) such
an objection had been taken recourse to.
The
necessity of "maintaining the secrecy of ballot papers" should be
kept in view before a re-counting is directed to be made. A direction for
re-counting shall not be issued only because the margin of votes between the
returned candidate and the election petitioner is narrow." The Court
furthermore emphasized the requirements of pleadings containing material facts
which are salutary in nature. In that case also it was found that no material
had been brought on record to show that the factual findings of the Returning
Officer were incorrect. This Court rejected the 'doctrine of prejudice', in
such a matter, as being not a relevant factor, having regard to the
constitutional and statutory scheme involving holding of election and the
consequences emanating from the direction of recounting which could lead to
identification of voters as the same would not be desirable. It was reiterated
that pleadings of material fact would include disclosure of all such
information which if not rebutted would result in allowing the petition. It was
opined :
"Had
the election petitioner in his pleadings, as noticed hereinbefore, disclosed
the details of the names of polling stations, counting centres, tables,
particulars of round of the counting of votes in relation whereto alleged
irregularities had taken place under all the four categories and basis of
material facts and particulars, the High Court, if finds that the election
petitioner has made out a prima facie case for scrutiny of ballot papers and
re- count, may direct re-count of ballot papers in respect of the said votes
only and not the entire votes. The High Court further failed to notice that in para
12 of the election petition it has merely been pointed out that irregularities
in respect of counting had materially affected the election and in that view of
the matter, the High Court should not have directed re-counting of all the
votes which would amount to going beyond the said election." This Court in
arriving at the said decision took into consideration various decisions,
including T.A. Ahammed Kabeer vs. A.A. Azeez & Ors. [(2003) 5 SCC 650],
whereupon Mr. Bagga has relied. Therein it has been held :
"It
is true that a re-count is not to be ordered merely for the asking or merely
because the court is inclined to hold a re-count. In order to protect the
secrecy of ballots the court would permit a re-count only upon a clear case in
that regard having been made out. To permit or not to permit a re-count is a
question involving jurisdiction of the court. Once a re-count has been allowed
the court cannot shut its eyes on the result of re-count on the ground that the
result of re-count as found is at variance with the pleadings. Once the court
has permitted re-count within the well-settled parameters of exercising
jurisdiction in this regard, it is the result of the re-count which has to be
given effect to." This Court did not agree with the said judgment in M. Chinnasamy
(supra) stating :
"With
respect, we are not in a position to endorse the views taken therein in their
entirety. Unfortunately, the decision of a larger Bench of this Court in Dr. Jagjit
Singh v. Giani Kartar Singh [AIR 1966 SC 773] had not been noticed therein.
Apart from the clear legal position as laid down in several decisions, as
noticed hereinbefore, there cannot be any doubt or dispute that only because a
re-counting has been directed, it would not be held to be sacrosanct to the
effect that although in a given case the court may find such evidence to be at
variance with the pleadings, the same must be taken into consideration. It is
now well-settled principle of law that evidence adduced beyond the pleadings
would not be admissible nor can any evidence be permitted to be adduced which
is at variance with the pleadings. The court at a later stage of the trial as
also the appellate court having regard to the rule of pleadings would be
entitled to reject the evidence wherefor there does not exist any
pleading." We may also notice that in Chandrika Parshad Yadav vs. State of
Bihar & Ors. reported in (2004) 6 SCC 331, this Court dealing with the
provisions of Bihar Panchayat Election Rules, stated the law in the following
terms :
"Rule
79 as noticed hereinbefore enables a candidate to file an appropriate
application for re- counting of votes. Rule 79 unlike rules framed by other
States does not say that such an application would not be maintainable after
declaration of the votes polled by the parties or prior thereto. Such an
application, therefore, can be filed at any point of time. The very fact that
sub- rule (3) of Rule 79 provides for amendment of the result relating to the
votes polled by the respective candidates and as such amended result is
required to be announced in the prescribed form under sub-rule (2) of Rule 79,
the same itself is a pointer to the fact that even after announcement of result
an application for re-counting would be maintainable. It may be true that only
because such an application had not been filed before the Returning Officer by
itself may not preclude the Election Tribunal to go into the question of
requirement of issuing a direction for re-counting but there cannot be any
doubt whatsoever that Rule 79 serves a salutary purpose.
Counting
of ballot papers in terms of the rules takes place in presence of the candidate
or his counting agent. When an agent or a counting agent or the candidate
himself notices improper acceptance or rejection of the ballot papers, he may
bring the same to the notice of the prescribed authority. As noticed
hereinbefore, in a given case, an application for re-counting either before
announcement of the result or thereafter, would be maintainable. Once an
application is filed by an agent or a counting agent or the candidate himself pointing
out the irregularities committed by the officers appointed for counting the
ballot papers, immediate redressal of grievances would be possible. As
indicated hereinbefore, while filing such an application the basis for making a
request for re-counting of votes is required to be disclosed. The Returning
Officer is statutorily enjoined with a duty to entertain such an application,
make an inquiry and pass an appropriate order in terms of sub-rule (2) of Rule
79 either accepting in whole or in part such requests or rejecting the same wherefor
he is required to assign sufficient or cogent reasons. In the event such an
application is allowed either in whole or in part, he is statutorily empowered
to amend the results also.
Ordinarily,
thus, it is expected that the statutory remedies provided for shall be availed
of. If such an opportunity is not availed of by the election petitioner; he has
to state the reasons therefor. If no sufficient explanation is furnished by the
election petitioner as to why such statutory remedy was not availed of, the
Election Tribunal may consider the same as one of the factors for accepting or
rejecting the prayer for re- counting. An order of the prescribed authority
passed in such application would render great assistance to the Election
Tribunal in arriving at a decision as to whether a prima facie case for
issuance of direction for re-counting has been made out." In M. Chinnasamy
(supra), the decision P.K.K. Shamsudeen vs. K.A.M. Mappillai Mohindeen &
Ors. [(1989) 1 SCC 526] had been noticed. Referring to Dr. Jagjit Singh v. Giani
Kartar Singh, it had been observed :
"In
Jagjit Singh (Dr.) v. Giani Kartar Singh2 before a three-Judge Bench of this
Court, a contention was raised to the effect that when a Tribunal considering
the evidence in the light of the allegations made by the election petitioner
was satisfied that inspection should be ordered, the same should not ordinarily
be reversed in appeal wherein this Court held: (AIR pp. 784-85, para 35)
"35.
We are not prepared to accept this contention. The order passed by the Tribunal
clearly shows that the Tribunal did not apply its mind to the question as to
whether sufficient particulars had been mentioned by the appellant in his
application for inspection. All that the Tribunal has observed is that a prima
facie case has been made out for examining the ballot papers; it has also
referred to the fact that the appellant has in his own statement supported the
contention and that the evidence led by him prima facie justifies his prayer
for inspection of ballot papers. In dealing with this question, the Tribunal
should have first enquired whether the application made by the appellant
satisfied the requirements of Section 83(1) of the Act; and, in our opinion, on
the allegations made, there can be only one answer and that is against the
appellant. We have carefully considered the allegations made by the appellant
in his election petition as well as those made by him in his application for
inspection, and we are satisfied that the said allegations are very vague and
general, and the whole object of the appellant in asking for inspection was to
make a fishing enquiry with a view to find out some material to support his
case that Respondent 1 had received some invalid votes and that the appellant
had been denied some valid votes.
Unless
an application for inspection of ballot papers makes out a proper case for such
inspection, it would not be right for the Tribunal to open the ballot boxes and
allow a party to inspect the ballot papers, and examine the validity or
invalidity of the ballot papers contained in it. If such a course is adopted,
it would inevitably lead to the opening of the ballot boxes almost in every
case, and that would plainly be inconsistent with the scheme of the statutory
rules and with the object of keeping the ballot papers secret." Recently
in Gursewak Singh vs. Avtar Singh & Ors. [(2006) 4 SCC 542, this Court opined
:
"While
interfering with an order of the Election Tribunal, particularly, in view of
the purport and object for which such Tribunal had been constituted, the High
Court had an obligation to assign sufficient and cogent reasons.
The
High Court, as noticed hereinbefore, proceeded on the basis that the Appellant
was responsible for the mess created in the matter of maintenance of records.
There are items of evidence on record to show that ballot papers had not been
properly kept. Some were kept in loose sheets.
They
had been counted separately. The Tribunal noticed how ballot paper envelopes
were found in suspicious circumstances.
Instead
of breaking the seals at one end, large number of ballots were found in loose
condition. 200 ballot papers of booth No. 41 were found in the bag of booth No.
43. The Tribunal, therefore, came to the conclusion:
".....From
a comparative analysis of the position (booth-wise) of the results after
recounting, as given tabular form on page 13 above, it is apparent that there
is no issue as pertaining to the counting process in Booth 42, as the total
number of ballots polled (966) is same, and there is rather a decrease of 4
rejected votes, which have now been counted in the tally of the Respondent 1,
thereby increasing his tally of booth 42 to 467 from 463.
Similarly,
in relation to Booth 43, if one takes into account that 2-ballot papers in favour
of the petitioner which pertained to Booth 41 have somehow managed to enter the
packet containing ballot papers of Booth 43 then the matter is somewhat
regular, as the total votes polled in the booth 43 is similar at 902, and there
is only marginal difference of 1 extra vote which was polled in favour of
petitioner being declared rejected..." We, therefore, in view of the facts
and circumstances of the case, are unable to uphold the findings of the
Tribunal and the High Court. We set them aside accordingly. The appeal is
allowed. The First Respondent shall bear costs of the Appellant, which is
quantified at Rs.10,000/-.
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