Jagat Naraian, J. - (1.)THIS election petition has been remanded on appeal for redecision after recounting of the ballot papers. In this election petition Shri Nathu Ram Mirdha, the defeated candidate, has challenged the election of Shri Gordhan Soni, respondent No. 1 to the Rajasthan Legislative Assembly from the Merta Assembly constituency on the ground specified in Section 100(1)(d)(iii) of the Representation of the People Act. Shri S.B. Arye, Sub Divisional Officer, Merta who acted as Returning Officer for this constituency has been impleaded as respondent No. 2 in this petition. The election petition was dismissed by me by my judgment dated 22nd August 1967. The material facts are given in detail in that judgment, but it is necessary to reinstate some of them. Poll was held on 15th February 1967. Counting took place on 21st February and 22nd February 1967 in Merta and the result of the election was declared after the counting on 22 -2 -67. According to the counting made by the Returning Officer respondent No. 1 polled 23169 valid votes. The petitioner polled 22458 valid votes and 3440 votes were rejected as invalid.
(2.)COUNTING of the Assembly ballot papers was done at 7 tables by a staff of 3 persons on each table -One supervisor and two counting assistants. One counting agent of each of the two candidates sat on each table. The ballot papers were sorted out in 3 lots in 3 steel trays. In one tray ballot papers which were validly marked for the petitioner were kept. In the second tray ballot papers which were validly marked for respondent No. 1 were kept. In the third tray "doubtful" ballot papers were kept. The ballot papers in each tray were then made into bundles of 50 each and the odd ball: t papers were also made into a separate bundle by tying them with rubber band?. All the bundles in one tray were then tied together into a bigger bundle with rubber band or with sutli. It may be mentioned here that all the ballot papers from one station were counted at one time at one table. Under Rule 45 of the Conduct of Election Rules 1961 the Presiding Officer has to prepare a ballot paper account in form No. 16 and send it to the Returning Officer along with ballot boxes. This ballot paper account gives the total number of ballot papers issued to voters together with their serial numbers. According to instruction No. 9 of the 'Instructions to Counting Supervisors and Assistants" Part II, form No. 16 should be filled by counting Supervisors after they have completed the counting of the polling station. The Supervisor enters the name of the candidates and the number of valid votes cast for them in the columns provided for this purpose. In the the column provided for entering the rejected ballet papers he enters the number of doubtful ballot papers. These bundles are then taken to the table of the Returning Officer, who test checks the bundles of the valid ballot papers of the candidates and scrutinises each doubtful ballot paper. He is the final authority competent to reject a ballot paper. If he accepts any doubtful ballot paper, for any candidate he adds it to the number of valid votes for that and date. If as a result of test checking he rejects a ballot paper counted as valid by the Supervisor for a candidate then he deducts it from the number of valid votes of that candidate. Part II of form No. 16 if filled in accordance with the Instructions, goes to show how many of the doubtful ballot papers were accepted by the Returning Officer for the respective candidates and how many of their "valid votes" were rejected by him. If a supervisor acts honestly then he applies the same standard in treating a ballot paper as doubtful irrespective of the fact whether his decision would favour one candidate or another. The Returning Officer is also expected to act honestly and apply the same standard in rejecting a ballot paper irrespective of whether his decision favours one candidate or another. In a normal case where the votes polled by two candidates are almost equal the decision of the Returning Officer is likely to be in favour of or against the two candidates almost equally. A perusal of Part II of form No. 16 thus shows whether the Returning Officer has acted impartially or not. In this particular case the Returning Officer did not allow the Supervisors to fill part II of form No. 16 at their tables after counting in accordance with the Instructions although he was fully aware of them. He got part II of form No. 16 filled after his scrutiny. It is therefore not possible to find out how many ballot papers of the two respective candidates were treated as doubtful by the Supervisors and how many of them were accepted by them for one candidate and how many for the other.
After the counting on 21 -2 -67 was over respondent No. 1 complained to the Election Commissioner, New Delhi, the Chief Election Officer, Jaipur and the District Election Officer, Nagaur by sending telegrams and telephonic message that the Returning Officer was showing partiality towards the petitioner who was at the time a Cabinet Minister in the Govt, of Rajasthan. On 22 -2 -67 he filed application Ex. 9 before the Returning Officer complaining inter alia he did not permit counting supervisors to fill in form No. 16 but got it filled at his table after he had scrutinised the ballot papers. At this the Returning Officer wrote out an order that the form was being filled up by the supervisors in accordance with the Rules. The Returning Officer admitted in his evidence that the form was filled at his table by Jigar Mohammad after his scrutiny and was not filled by the supervisors in accordance with the rules.

(3.)BUNDLES of ballot papers of each polling station were kept in a pigeon hole after scrutiny. It is not disputed that 3 bundles were made at each table -2 containing the valid ballot papers of the two respective candidates and the third containing the doubtful ballot papers. According to Shri Ajmera P.W. 2, Election agent of the petitioner, these 3 bundles were then tied together into a bigger bundle. Instruction No. 10 of the "Instructions to Counting Supervisors and Assistants" (Ex A/I) also lays down that all the bigger bundles should be tied up in one packet The other witnesses did not say that they were so tied up in one packet. The said that these 3 bundles were kept in the pigeon hole and from the pigeon hole they were taken out and kept on the table of the Returning Officer. The Returning Officer admittedly himself scrutinised the doubtful ballot papers. The evidence as to who really test checked the bundles of valid ballot papers and the extent of this test checking is discrepant and has been dealt with in my previous judgment.
;