SHARMA, J. - (1.) THE petitioner who was defeated by a margin of 99 votes from DEEG Assembly Constituency, filed this election petition with the following prayer: (i) to allow recount of all the ballots of third and fourth round of counting of the Deeg Assembly Constituency; and if the same is not possible on account of mixing of ballots of all the rounds, then all the ballots of all the four rounds be ordered to be recounted and (ii) to declare void and set aside the election of Respondent No. 1 and instead declare the petitioner to be elected as Member of Rajasthan Legislative Assembly from Deeg (70) Assembly Constituency of Rajasthan, for which the result was declared on 28th of November 1998 and a certificate be ordered to be granted to the petitioner of having being elected as Member of Rajasthan Legislative Assembly and a Consequential order for notifying the election of the petitioner in the official Gazette, and to award the cost of the election petition to the petitioner.
(2.) IN the election for the Rajasthan Legislative Assembly held in November 1998, the petitioner Laxman Singh and respondents No. 1 to 10 were the contesting candidates from DEEG (70) Assembly Constituency. The polling was held on November 25, 1998 and counting of votes was conducted on November 28, 1998. The petitioner secured 23,700 votes whereas the respondent No. 1 Arun Singh secured 23,799 votes and respondent No. 1 was declared to have been duly elected. Thereafter on January 11, 1999 the petitioner has approached this court. The principal grounds set up by the petitioner in support of this petition are as under - (i) The space available for counting agents was very scanty and the counting agents were made to sit at a distance from counting table with a gauge wire in between and it was not possible to supervise the counting properly. (ii) In the third round of counting 200 ballot papers marked in the shaded area, were wrongly counted in the valid votes of respondent No. 1 whereas they should have been rejected. A protest was made to the Returning Officer for recounting the valid votes of the respondent No. 1 in the third round. (iii) In the forth round of counting the difference between the votes of the petitioner and the respondent No. 1 had become narrower. Vishvendra Singh of royal family of Bharatpur and his counting agents came to Room No. 17 and 18 and threatened the polling party that if Arun Singh is defeated, they would not be able to go alive to their respective homes. Protest was made by the petitioner of entering of Vishvendra Singh into the room. At this incident the counting party specially on tables No. 3, 7, and 8 in Room No. 17 and on tables No. 1 1 (9), 4 (12), 7 (15) and 9 (17) in Room No. 18 started inflating the votes of respondent No. 1 artificially by proceeding with the counting with speed and mixing the ballots of petitioner and other candidates in the ballots of respondent No. 1. In this manner 100 votes of the petitioner and other candidates were mixed with the votes of respondent No. 1 and even the ballot papers of the petitioner numbering about 75 were mixed with other candidates in order to minimise the votes of the petitioner. The ballot papers about 50 which were thumb marked and should have been rejected but were counted in favour of respondent No. 1. About 150 votes were counted in favour of respondent No. 1 were marked in shaded area and the protest was not cared to. Counting agents on these tables were not allowed to see and note down the ballot paper numbers and protest made to Returning Officer and Assistant Returning officers also did not yield any fruitful result. (iv) Test checking of 10% of the total bundle of votes was not performed by the Returning Officer. Even random checking of 5% of votes was also not performed. (v) Written request for recounting was made by the Election Agent of the petitioner Ram Bharose Lal to the District Returning Officer but recounting was not done, result was declared and the petitioner had lost by a margin of 99 votes. Written complaint was faxed on November 28, 1998 to the Election Commission. The respondent No. 1 submitted written statement denying the allegations made in the election petition. It was interalia stated that the averments made in regard to reception of 200 votes which were marked on shaded area and counted in favour of respondent No. 1 were denied. It was averred that the allegations are too vague and they are lacking in material facts as required in Sec. 83 of the Representation of People Act, 1951. It was denied that one Vishvendra Singh had ever come to room Nos. 17 and 18. It was also denied that any complaint was made to the Returning officer. It was denied that 100 votes of the petitioner and other candidates were mixed with respondent No. 1. It was denied that about 50 ballot papers bearing thumb mark were counted in favour of the respondent No. 1. It was also denied that the petitioner was not allowed to note down the serial number of ballot papers and in fact no request had been made at all. The allegations in regard to 150 ballot papers were also denied. It was however admitted that the application for recounting the votes was submitted to the District Election Officer who had sent it to the Returning Officer and the said application was rejected after hearing arguments of the petitioner on November 28, 1998. The fax massage sent to the Election Commission was also denied. Following issues were framed, out of the pleadings of the parties : 1. Whether in the third round of counting 200 ballots were marked or bore seal on the shaded area and have been wrongly counted in favour of respondent No. 1 and whether any such protest was made by the election agent of the petitioner for rejection of 200 valid votes, if so to what effect? 2. Whether in the 4th round, the counting agent of Vishvendra Singh visited the room Nos. 17 * 18 and threatened the members of the polling party to help respondent Arun Singh i. e. the returned candidate and in the process the ballot papers in favour of respondent No. 1 were inflated and whether any ballot paper of the petitioner and other candidates were wrongly mixed in the ballot papers of the respondent and that whether the ballot papers in favour of the petitioner were also mixed with the ballot papers of other candidates and if so to what effect as stated in para 12 of the petition? 3. Whether in the 4th round of counting about 150 ballot marked in the shaded area were illegally counted in favour of respondent No. 1 and whether any such protest was made at the time if so to what effect as stated in para 13 of the petition ? 4. Whether it is a fact that Assistant Returning Officer after completion of 4th round had declared the petitioner as returned candidate by 99 votes and whether such declaration was challenged subsequently as alleged in para 15 of the petition ? 5. Whether any application for recounting was made by the petitioner and if so to what effect as alleged in para 17 and 18 of the petition ? 6. Whether counting of ballots/votes in the 4th round were not properly conducted during the process of counting and whether such illegalities and irregularities have materially effected the result of the election? 7. Whether the petitioner is entitled to get the benefit of 3rd and 4th round of recounting and in the alternative if 4th round ballots cannot be separated then whether the petitioner is entitled to get entire ballots of all rounds recounted, if yes to what effect ? 8. Whether election of the returned candidate is likely to be set aside and if so and whether the petitioner can be declared as a elected member of the Rajasthan Legislative Assembly result of which was declared on 28. 11. 1998 ? 9. Any other relief ? The petitioner examined himself as PW. 1, and produced Ram Bharose Sharma PW. 2, Prahlad Singh PW. 3, Jagdish Prasad Agrawal PW. 4, Durga Prasad PW. 5, Bharat Bhushan PW. 6, Jagveer Singh PW. 7 and Bhagwan Singh PW. 8 in support of election petition. Whereas the respondent No. 1 Arun Singh, examined himself as DW. 1, and produced Dr. Bhagwan Das DW. 2, Kanhaiya Singh DW. 3, Sita Ram DW. 4, Balbir Singh DW. 5, Om Prakash DW. 6, Keshav Singh DW. 7, Lokendra Singh DW. 8, Raj Pal DW. 9, Hari Mohan DW. 10, Ram Lal DW. 11, Khem Raj DW. 12, Dalbir Singh DW. 13 and Surendra Singh DW. 14.
(3.) I have pondered over the rival submissions and closely scanned the material on record. Before considering the rival submissions I deem it appropriate to analyse the circumstances under which an order for recounting of the ballot papers can be made. Their Lordships of the Supreme Court laid down principles in this regard in V. S. Achuthanandan Vs. P. J. Francis and another (1), after considering the various judgments including the Constitution Bench decision in Ram Sewak Yadav vs. Hussain Kamil Kidwai (2), and other decisions rendered in Suresh Prasad Yadav vs. Jai Prakash Mishra (3), Bhabhi vs. Sheo Govind (4), and M. R. Gopalakrishnan vs. Thachady Prabhakaran The principles are as under : " (i) The secrecy of the ballot is sacrosanct and shall not be permitted to be violated lightly and merely for asking or on vague and indefinite allegations or averments of general nature. At the same time purity of election process has to be preserved and therefore inspection and recount shall be permitted but only on a case being properly made out in that regard. (ii) A petitioner seeking inspection and re-count of ballot-papers must contain averments which are adequate, clear and specific making out a case of improper acceptance or rejection of votes or non-compliance with statutory provisions in counting. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose. (iii) The scheme of the rules prescribed in Part V of the Conduct of Election Rules, 1961 emphasises the point that the election petitioner who is a defeated candidates has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly overruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83 (1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts. (iv) The election petitioner must produce trustworthy material in support of the allegations made for a re-count enabling the court to record a satisfaction of a prima facie case having been made out for grant of the prayer. The court must come to the conclusion that it was necessary and imperative to grant the prayer for inspection to do full justice between the parties so as to completely and effectually adjudicate upon the dispute. (v) The power to direct inspection and re-count shall not be exercised by the court to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out material for declaring the election to be void. (vi) By mere production of the sealed boxes of ballot papers or the documents forming part of record of the election proceedings before the court the ballot papers do not become a part of the court record and they are not liable to be inspected unless the court is satisfied in accordance with the principles stated hereinabove to direct the inspection and re-count. (vii) In the peculiar facts of a given case the court may exercise its power to permit a sample inspection to lend further assurance to the prima facie satisfaction of the court regarding the truth of the allegations made in support of a prayer for re- count and not for the purpose of fishing out materials. Bearing in mind the aforesaid principles I proceed to consider the fact situation emerges from the material on record. ;