G.N.RAY - (1.) THIS appeal is directed against the judgment dated 15/09/1992 passed by the High Court of Punjab and Haryana in Election Petition No. 15 of 1991. The aforesaid Election Petition was preferred by the appellant Shri Ajit Singh under Section 81, of the Representation of the People Act, 1951 (hereinafter referred to as Representation Act) inter alia praying that the election of the returned candidate Shri Bansi Singh, respondent No 1, should be declared void and the petitioner having secured the next highest score should be declared as returned from Ateli Constituency No.89 in the State of Haryana in the Vidhan Sabha Election held in 1991. For the election of the Haryana Vidhan Sabha for the year 1991, the following schedule was set up by the Election Commission :- JUDGEMENT_758_4_1995Html1.htm
(2.) ON account of unfortunate assassination of Shri Rajiv Gandhi on 21/05/1991, the date of counting was postponed to 16/06/1991. The polling had however been held on 20th May as per the schedule. It appears that initially 46 persons filed their nomination papers but 24 persons had drawn and the election petitioner, Shri Ajit Singh, and 20 other candidates contested the said election from Ateli Constituency No.89. The respondent No. 1, Shri Bansi Singh, having secured the highest votes as a Congress-1 candidate was declared elected from the said constituency. The validity of election was challenged by the election petitioner on the ground of various irregularities committed in counting the ballot papers. Such irregularities may be stated as hereunder : a) the counting place was surrounded by high fence and the counting agents were made to sit beyond that fence. Such agents had therefore no access to the counting tables and they could not watch the counting from distance. b) five persons, named by the election petitioners were stated to be relations or proteges of Shri Bansi Singh who was declared elected, but such persons were deputed as counting Assistants. Although objection was raised about their presence, only one of them, namely, Gianinder Singh was removed from Table No. 3 and sent to the reserve staff. c) Shri Manoj Kumar who was the counting Supervisor of Table No. 3 was a close relation of respondent No. 1 and despite the said fact being pointed out by the election petitioner no step was taken against such irregularity. d) On the complaint of Shri N.S. Jadav election agent a random check was held in respect of Booth No. 33 and it was found that the respondent No. 1 had been given the benefit of nine votes although on rechecking it was found that three votes had been cast in favour of the election petitioner and six of such ballot papers were blank. Six such ballot papers were ultimately rejected and the three polled in favour of the petitioner were added in this counting. Similarly, one ballot paper was found in the packet relating to Booth No. 18. On detection, the said blank ballot paper was rejected. e) Improper acceptance of postal ballots (110 number) after the date of polling. f) The counting assistants and supervisors rejected the ballot papers on their own without taking any decision from the Returning Officer. The Returning Officer has also no opportunity to apply his mind and no reasons were recorded for the rejection of the ballot papers. g) The counting agent of the petitioner and that of Nihal Singh another candidate had objected to the bungling of table No. 9 and Nihal Singh also made a complaint and though a request was made for recounting, such request was not adhered to. h) That in large number of polling booths the column of Form 16 with respect to doubtful ballot papers was kept blank with an obvious intention to manipulate the result in favour of the returned candidate. i) The instruction of the election petitioner for checking the high percentage of the bungling of the ballot papers for ensuring accuracy was not complied with by the Returning Officer. The respondent No. 1 the elected candidate, however, contested the said election petition and by filing written statement controverted the allegations made by the election petitioner. The learned Judge of the Punjab and Haryana High Court after elaborate discussions and after dealing with the contentions raised in the election petition and the evidences adduced in the case, inter alia came to the finding that the counting had been properly made. No irregularity was committed in counting votes or accepting and rejecting the ballot papers as contended by the election petitioner. He therefore dismissed the said election petition by the impugned judgment.
(3.) AT the hearing of this appeal, the learned senior counsel appearing for the appellant has challenged the impugned decision of the High Court mainly on four grounds which have been indicated in the written submissions filed at the hearing of this appeal. It has been contended that admittedly the fencing was made in the hall where ballot papers were counted and the Assistants counting the ballot papers sat inside the fence but the election agents were compelled to sit outside the fence. All such election agents could not sit at the front row and many of them including the agent of the election petitioner on occasions had to sit at the back benches and there was hardly any opportunity to see the counting of votes and the rejection of invalid ballots. It has been contended that Rule 53 of the conduct of Election Rules, 1961 provides that the returning officer shall exclude from the place fixed for counting of votes all persons except a) such persons (to be known as counting supervisors and counting assistants) as he may appoint to assist him in the counting b) persons authorised by the Election Commission c) public servants on duty in connection with the election d) candidates, their election agents and counting agents. It has also been contended by the learned counsel that the Hand book for Returning Officer issued by the Election Commission in 1984 (reprinted in 1988) provides in para 7 of Chapter XIV that the Returning Officer shall post constables on duty at the door or the doors of counting halls and shall not allow any person to enter or leave the room without his permission. Rule 55 provides for scrutiny and opening of ballot boxes. Rule 56 gives minute details regarding the procedure of counting. Sub-rule (2) Rule 55 prescribes that before rejecting any ballot paper under Sub-rule (2), the Returning Officer shall allow each counting agent present, a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper. In the election petition, the appellant has made grievance that the counting place where the counting tables were laid was surrounded by high fence and counting agents were made to sit beyond the fence. Such counting agents had no access to the counting table and had to watch the counting from distance. The counting, as the matter stood, entirely depended on the impartiality and fairness of the officials and counting assistant. It has been very strongly contended that it was the duty of the Returning Officer to admit the counting agents to the counting hall and to permit them to watch the counting of votes on each and every table. The learned counsel has also contended that elaborate evidence had been led to establish the fact that the counting agents sitting in the second and third row of benches beyond the fence particularly at the extreme end were not able to see the ballot papers handled by the counting assistants and to ensure whether counting or rejection of votes had been properly made. In this connection, the depositions of Chander Bhan PW-1, appellant Ajit Singh PW-5, Nihal Singh PW-7, Daya Nand PW-8, Narinder Singh PW-9, Om Parkash PW-11, Jaswant Singh, PW-12, Banwari Lal PW-13 and Mohan Lal PW-14 were referred to by the learned counsel for the appellant. It has been contended that according to para 9(b) of the Hand Book of Returning Officer, only in compelling circumstances and on the complaint of a candidate who alleges that his agents were over-awed by an unnecessary show of force, police can be called by the Returning Officer in the counting hall. But in the present case it is admitted that the police was present inside the counting hall.;