Holding

The Supreme Court held that the counting process was valid, the precautions taken were justified, postal ballots received before the commencement of counting were valid, and no convincing evidence of irregularities existed to set aside the election result.

Summary

Ajit Singh challenged the 1991 Haryana Vidhan Sabha election of Bansi Singh under Section 81 of the Representation of People Act, alleging irregularities in vote counting, including a fenced counting hall that restricted agents' view, police presence, the appointment of counting assistants who were relatives of the returned candidate, and the acceptance of postal ballots after the polling date. The Supreme Court examined whether these alleged procedural flaws violated the Conduct of Elections Rules and whether they materially affected the result. It held that the fencing and police deployment were justified to prevent disturbances, that Rule 27 validates postal ballots received before the commencement of counting, and that there was no convincing evidence of improper conduct by the counting assistants. Consequently, the Court found no basis to set aside the election result. The appeal was dismissed.

Issues considered

The legality of the fencing and seating arrangement in the counting hall and the restriction of election agents' access.
The propriety of police presence inside the counting hall during vote counting.
The impact of appointing counting assistants/supervisors who were relatives of the returned candidate on the validity of the count.
Whether postal ballots received after the polling date but before the commencement of counting are valid.
The adequacy of the Returning Officer's consideration of objections and certificates of satisfaction.
The scope of the Supreme Court's power to interfere with findings of fact in election petitions.

Legislation cited

Conduct of Elections Rules, 1961s. 27, s. 51, s. 53, s. 54, s. 54A, s. 55, s. 56
Representation of People Act, 1951s. 59, s. 81

Subjects

election petitionvote countingpostal ballotConduct of Elections RulesRepresentation of People ActSupreme Court interferenceelection irregularitiescounting assistantspolice presence

Judgment

........

A AJIT SINGH
v.
BANSI SINGH AND ORS.

JULY 12, 1995

B [G.N. RAY AND FAIZAN UDDIN, JJ.)

Election Law-Conduct of Elections Rules, 1961-Rules 54, 54A and
27 as amended by notification issued on 27.1.1971-lnterpretation of-Postal
ballot-Valid if received before commencement of counting of vote~Rule 27
C validates receipt of postal ballot upto the hour fu:ed for commencement of
counting of votes.

Representation of People Act, 1951-Section Bl-Election Peti-
tion-Appeal-Scope of powers of Supreme Court to interfere with finding of
fact.
D
Engagement of relation/proteges of returned candidate in duties of
counting ballot papenr-No evidence about improper conduct-Election result
not liable to be set aside.

The appellant filed an Election Petition u/s 81 of the Representation
E of People Act, 1951, praying that the election of the returned candidate,
respondent No. 1 should be declared void and the petitioner having
secured the next highest score should be declared as returned. The validity
of election was challenged on the ground of various irregularities com-
mitted in counting the ballot papers. The High Court dismissed the
F election petition on recording a finding that the counting had been proper-
ly made. This appeal had been directed against the judgment of the High
Court.

The appellant challenged the impugned decision of the High Court
G mainly on four grounds, namely, (i) 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 and as 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
H Hie counting of votes and the rejection of invalid ballots, and also that the
34
ATIT SINGH v. BANSI SINGH 35

police was present inside the counting hall; (ii) improper acceptance of the A
postal ballots beyond the date fixed for such acceptance in form 13-D had
adversely affected the election result; (iii) although the complaints relating
to irregularities in the counting of votes were made by the election
petitioner and his agent, the Returning Officer failed to consider the same,
and (iv) rejection of ballot papers at the level of counting assistants and
supervisors and non consideration of such rejected ballot papers by the
B
Returning Officer. The appellant also alleged that he had specifically
pointed out that some of the counting assistants/supervisors were the
relations of the returned candidates but the Returning Officer did not
remove them from the duty.
c
Dismissing the appeal, this Court

HELD : 1.1. In the instant case, there was reasonable apprehension
of disturbances at the time of counting of votes and Returning Officer had
justification to place police officials in the counting hall so as to avoid any D
1.
disturbance. Large number of candidates contested the election and if
election agents of a large number of candidates were to be admitted at the
place of counting the ballot papers, the Returning Ofiicer had no alterna-
tive but to place benches in rows so that the election agents could sit in
such benches placed in row on the basis of first-cum-first sit. It had been
clearly established by evidence that whoever had occupied the first row of E
the benches on the basis of coming first was allowed to sit there and
whenever such person left his seat the other persons sitting in the second
or third row had come and occupied the said seat. Placing of fence, in the
'r facts and circumstances of the case, was necessary to prevent any un-
toward situation developing at the time of counting. Such precautionary F
measures taken by the Returning Officer, could not be held to be unjus-
tified thereby rendering the counting process invalid. In the central table
Returning Officer and the candidates were allowed to sit and from such
place, the process of counting could be seen by the persons sitting at the
central table. [41-E-G]
G
1.2. Rule 27 of the Conduct of Election Rules, 1961 makes the postal
> ballot valid if they are received before the commencement of counting of
votes. The right to franchise by postal ballot should not be defeated on
technicality or narrow interpretation of the rules and instructions issued.
Rule 27 dealing with the return of the ballot paper has undergone a change H
36 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A about the time within which Form 13-D is to reach the Returning Officer.
Previously, it was indicated that Part II of Form 13-D should reach the
Returning Officer on the date fixed for the poll. In 1967, the said Rule 27
underwent a change. In sub-rule (1) of Rule 27, for the figures and letters
10.00 a.m. the words 'the hour fixed for the close of the poll' had been
substituted. By notification issued on January 27, 1971, the words 'the hour
B fixed for the close of the poll' were substituted by the words "the hour fixed
for commencement of counting of votes". The Rule making authority has
enlarged the time by which an elector casting his vote through postal ballot
can send the ballot paper through post so as to make it valid. Rule 27
should be given its due import so as not to deprive an elector to exercise
C ·his right to vote by postal ballot, when the said rule, in view of the
amendment and enlargement of time, validates the receipt of the postal
ballot upto the hour fixed for commencement of counting of votes. Accord-
ingly, postal ballots though received after May 26, 1991, but before the
counting of votes fixed by the Election Commission could not have been
D rejected. [44-A-E]

1.3. Although from a decision rendered in an election petition appeal
lies before this Court and this Court can interfere with finding of fact by
making independent apprisal of evidences, this Court as a matter of
prudence, is not inclined to interfere with finding of fact unless there is a
E very clear, convincing, cogent and umimpeachable evidence against the
correctness of the finding made by the High Court. Unless there are
convincing and clinching reasons to take a different view, the finding.
arrived at by the High Court should not be interferred with. [47-H, 48-A-B]

F. N.I. Singh v. LC. Singh, [1977) 1 SCR 573 and Mohd. Yunus Saleem
& Ors. v. Shiv Kumar Shast1i & Ors., [1974) 3 SCR 738, relied on.

1.4. In the absence of any convincing about improper conduct on the
part of those counting assistants/supervisors who were relations of the
G returned candidates, the election result in favour of the returned candidate
was not liable to be set aside on the score that a relation of the returned
candidate was deputed for the counting of votes. The Returning Officer
had taken appropriate steps in rectifying the mistake committed in count-
ing ballot papers. After each round of counting, the certificate of satisfac-
tion about proper counting by the candidates or their election agents had
H been obtained. '{here was no convincing and unimpeachable evidence
AJIT SINGH v. BANS I SINGH [G.N. RAY, J. J 37

about irregularities in counting of votes materially affecting the election A
result. Therefore, there was no occasion to set aside the election result.
[48-C, 49-H, 50-A-BJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 702 of
1993.
B
From the Judgment and Order dated 15.9.92 of the Punjab &
Haryana High Court in E.P. No. 15 of 1991.

D.V. Sehgal and Ms. Naresh Bakshi for the Appellant.

K. Madhava Reddy, Mahabir Singh and S.R. Sharma for the Respon- C
dents.

The Judgment of the Court was delivered by

G.N. RAY, J. This app~al is directed against the judgment dated
September 15, 1992 passed by the High Court of Punjab and Haryana in D
Election Petitio~ no. 15 of 1991. The aforesaid Election Petition was
preferred by the appellant Shri Ajit Singh under Section 81 of the Repre-
sentation of 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 E
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 Commis-
s10n:-
··-
(1) Last date for filing nomination "papers 26.4.91. F

(2) Scrutiny of papers 27.4.91

(3) Withdrawal of nomination papers 29.4.91

(4) Date of polling 20.5.91 G
} (5) Date of counting of votes 26.5.91

On accounting of unfortunate assassination of Shri Rajiv Gandhi on
May 21, 1991, the date of counting was postponed to June 16, 1991. The
polling had however been held on 20th May as per the schedule. It appears H
38 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A that initially 46 persons filed their nomination papers but 24 persons had
withdrawn and the election petitioner, Shri Ajit Singh, and 20 other can-
didates contested the said election from Ateli Constituency No. 89. The
respondent No. 1, Shri Bansi Singh, having secured the highest vote as a
Congress-I candidate was declared elected from the said constituency.
B The validity of election was challenged by the election petitioner on
the ground of various irregularities · committed in counting the ballot y·
papers. Such irregularities may be stated as hereunder:

(a) the counting place was surrounded by high fence and the
c 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
D 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 fro~ Table No. 3 and
sent to the reserve staff.

(c) Shri Manoj Kumar who was the counting Supervisor of Table
E
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
F 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 blan:((. Six such ballot papers were ultimately rejected and the
three polled in favour of the petitioner were added in this counting.
G 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
H date of polling.
AJIT SINGH v. BANSI SINGH [G.N. RAY, J.] 39

(f) The counting assistants and supervisors rejected the ballot A
papers on their own without taking any decision from the Return-
ing 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
B
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 C
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 D
percentage of the bungling of the ballot papers for ensuring ac-
curacy 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 E
Punjab and Haryana High Court after elaborate discussions and after
dealing with the contentions raised in the election petition and the eviden-
ces 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 im-
F
pugned judgment.

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 submis- G
sions 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 H
40 SUPREME COURT REPORTS [1995) SUPP. 2S.C.R.

A the agent of the election petitioner on occasions had to sit at the back
benches and their 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
B (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 (c) public servants on duty in connection with the election.

(d) candidates, their election age11ts 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
D (re-printed 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)
E of 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
F 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 assistants. It has been very strongly contended that it was the
duty of the Returning officer to admit the counting agents to the counting
G hall and to permit them to watch the counting of votes on each and every
table. The learned counsel has also contended that elaborate evidenced
{
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
H assistants and to ensure whether counting or rejection of votes had been
AJIT SINGH v. BANSI SINGH [G.N. RAY, J.] 41
'""'"·)
properly made. In this connection, the depositions of Chander Bhan P.W.l, A
appellant Ajit Singh P.W. 5, Nihal Singh P.W. 7, Daya Nand P.W. 8,
Narinder Singh P.W. 9, Om Parkash P.W. 11, Jaswant Singh P.W. 12,
Banwari Lal P.W. 13 and Mohan Lal P.W. 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 B
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.

It may be stated here that an official video photography of the
c
counting process was taken and it transpires that the video tape which was
placed before the Court was not dubbed or edited or manipulated in any
manner whatsoever and the Court had occasion to see the original video
tape. We have been taken through the evidences by the learned counsel
for both the parties and also the decision of the High Court. It appears to D
us that there was reasonable apprehension of disturbances at the time of
counting of votes and Returning Officer had justification to place police
officials in the counting hall so as to avoid any disturbance. It is an admitted
position that large number of candidates contested the election and if
election agents of a large number of candidates are to be admitted at the E
place of counting the ballot papers, the Returning Officer had no alterna-
tive but to place benches in rows so that the election agents could sit in
such benches placed in row on the basis of 'first-cum-first sit'. In our view,
.., it has been clearly established by evidence that whoever had occupied the
first row of the benches on the basis of coming first was allowed to sit there F
and whenever such person left his seat the other persons sitting in the
second or third row had come and occupied the said seat. Placing of fence,
in the facts and circumstances of the case, was necessary to prevent any
untoward situation developing at the time of counting. Such precautionary
measures taken by the Returning Officer, in our view, cannot be held to G
be unjustified thereby rendering the counting process invalid. It may also
be indicated that in the central table Returning Officer and the candidates
}
were allowed to sit and from such place, the process of counting could be
seen by the persons sitting at the central table. The learned judge, in our
view, has given detailed reasons as to why the contentions as to improper H
42 SUPREME COURT REPORTS [1995] SUPP. 2 s.c.R:
<"'
A counting of ballot papers for not giving reasonable access to the election
agents to see the counting should not be accepted. Such finding in the facts
and circumstances of the case, is fully justified and we do not find any
a
reason to take different view.

Learned counsel for the appellant has also challenged the acceptance
B
of postal ballots beyond the date fixed for such acceptance in Form 13-D.
He has also contended that improper acceptance of the postal ballots in \.·
favour of the returned candidates has adversely affected the election result.
It has been contended by the learned counsel that Section 59 of the
Representation Act indicates that the manner of voting in the elections is
c to be prescribed. Part III of the Conduct of Election Rules, 1961 prescribes
voting by postal ballot. Rule 27(1) lays down that after an elector has
recorded his vote and has made his declaration under Rule 24 or Rule 25,
he shall return the ballot paper and declaration to the Returning Officer
in accordance with the instructions communicated to him in Part II of
D Form 13-D so as to reach the Returning Officer before the hour fixed for
commencement of counting of votes. Form 13-D sent to the electors, who
were to cast their votes by postal ballot. Such Form clearly contains a
direction send the ballot papers to the Returning Officer before 12.00 noon
on May 26, 1991. It also makes clear that if the cover reaches the Returning
E Officer after the said time and date, the vote will not be counted. Rule 51
vests the power with the Returning officer to fix the date and time at which
counting will commence and if necessary, he may alter the date, time and
place so fixed. Rule 54A (2) enjoins the Returning Officer that no cover
in Form 13-C received by him after the expiry of the time fixed in that
F behalf shall be opened and no vote contained in such cover will be counted.
Learned counsel has contended that casting of vote by postal ballot is an ·
integral part of the polling. So, the vote cast by the postal ballot should
also be cast by the date of the polling. The amendment brought out in 1971 ~:.-

simply gives an allowance for receipt of the postal ballot by the date of
G counting instead of the date of polling but that does not change the
character of casting of vote by postal ballot. It has been contended by the
learned counsel for the appellant that in view of the unfortunate assassina-
tion of Shri Rajiv Gandhi the counting was postponed for a long time but -#.

that would not mean that a voter can exercise his right to vote by postal
H ballot even after the date of the polling. In this connection, reference has
AJITSINGH v. BANSISINGH [G.N. RAY,J.] 43

been made to Halsbury's Laws of England, Fourth Edition, Volume 15, A
Para 612 and 616. The learned counsel has submitted that the practice
followed in England in election matters is also applicable in India. In this
connection, the learned counsel has referred to the decision of this Court
in Jitendra Bahadur Singh v. Krishna Behmi, [1970] 1 SCR 852. It has been
held that election law in India is patterned on English Law. It has been B
contended by the learned counsel for the appellant that in all, 374 postal
ballots were received and entertained by the Returning Officer. Out of
them only 264 postal ballots were received upto May 26, 1991. 110 postal
- ballots were received between May 27, 1991 to June 16, 1991. So 110 postal
ballots received after May 26, 1991 ought not to have been counted by the C
Returning Officer. The counting of such 110 postal ballots has materially
affected the result of the elections.

It may be indicated here that Rule 54 provides for time and place of
counting of votes. The Returning Officer is required to fix the date for the
poll at least one week before such date of polling and is also to appoint D
the place or places where the counting will be done and the date when
votes will be counted and send a notice of the same in writing to each
candidate or his election agent. The proviso to Rule 54, however, em-
powers the Returning Officer to alter the date, time and place for counting,
if it is deemed necessary to do so, after giving notice to each candidates or E
his election agent.

Rule 54A deals with counting of votes received by post. Rule 54A
may be set out hereunder: -

(1) The Returning Officer shall first deal with the postal ballot F
papers in the manner hereinafter provided.

(2) No cover in Form 13-C received by the returning officer after
the expiry of the time fixed in that behalf shall be opened and
no vote contained in any sucJi cover shall be counted.
G
Rule 27 makes the postal ballots valid if they are received "before
the hour fixed for commencement of votes." Rule 27(2) gives instructions
to the Returning Officer as to the manner in which he has to keep a postal
ballot which has been received after the hour fixed for commencement of
counting. H
44 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.
f :>.
A It appears to us that Rule 27 makes the postal ballot valid if they
are received before the commencement of counting of votes. The right to
franchise by postal ballot should not be defeated on technicality or narrow
interpretation of the rules and instructions issued. It may be indicated here
that Rule 27 dealing with the return of the ballot paper has undergone a
change about the time within which Form 13-D is to reach the Returning
B Officer. Previously, it was indicated that Part II of Form 13-D should reach
the Returning Officer on the date fixed of the poll. In 1967, the said Rule
27 underwent a change. In sub-rule (i) of Rule 27, for the figures and letters
'10 a.m.' the words 'the hour fixed for the close of the poll' had been
substituted. By Notification issued on January 27, 1971, the words 'the hour
c fixed for the close of the poll' were substituted by the words "the hour fixed
for commencement of counting of votes." It is thus evident that the Rule
making authority has enlarged the time by which an elector casting his vote
through postal ballot can send the ballot paper through post so as to make
it valid. Rule 27, in our view, should be given its due import so as not to
deprive an elector to exercise his right to vote by postal ballot, when the
D
said rule, in view of the amendment and enlargement of time, validates the l-·
receipt of the postal ballot upto the hour fixed for commencement of
counting of votes. Accordingly, postal ballots though received after May
26, 1991, but before the counting of votes fixed by the Election Commission
could not have been rejected.
E
It has been contended by the learned counsel for the appellant that
although the complaints relating to irregularities in the counting of votes
were made by the election petitioner and his agent, the Returning officer
failed to consider the same. The learned counsel has submitted that PW ¥

F 13 has stated that he could get only a chance to sit at the back bench in
the third row. When a seat was vacated by another counting agent, he was
able to occupy the front row and was able to see the counting of votes
properly. When he sat in the front row, he could see some blank valid
papers being filed in the bundle of ballots counted in favour of the elected
candidate Shri Bansi Singh. PW 13 has also stated that he cried at a loud
G voice addressing Narinder Singh PW 9 drawn his .attention about such
irregularities. PW 9 has also stated that he advanced the complaint to the
Returning Officer about the bungling in the counting of votes being done ~-

by Gianinder Singh at Table No. 3. On such protest, the said Gianinder
Singh was removed. On an application (Exhibit }>-7) made by Narinder
H Singh it was found that as many six blank ballot papers had been tied in
AJIT SINGH v. BANSI SINGH [G.N. RAY, J.] 45

the bundle of votes in favour of Shri Bansi Singh and three ba&ts which A
were actually cast in favour of the appellant were also counted and tied in
the bundle of respondent No. 1 at table No. 3. Om Parkash PW 11 who
was counting agent of Rao Nihal Singh PW 7 at Table No. 9 had told that
he noted bungling of 56 ballot papers at Table No. 9. He observed such
fact by sitting in the front row as one of the counting agents who had earlier B
occupied the seat had left for about 15 minutes. He informed Rao Nihal
Singh PW 7. He has also stated that he made a complaint about Table no.
9 and on checking, he found that 56 ballots out of which 40 had been polled
in favour of Shri Nihal Singh and 10 in favour of Ajit Singh the appellant.,
5 in favour of BJP candidate have been tied in the bundle relating to ballot
papers counted in favour of Shri Bansi Singh respondent no. 1. On his C
complaint Shri Inder Singh the counting Assistant was removed. On check-
ing the above, irregularities were detected and out of frustration in the
manner in which the counting had taken place, the said Shri Nihal Singh
left the counting hall after 5th round. The learned counsel has submitted
that unfortunately the complaint made by Shri Nihal Singh is not on record, D
but its reference is available only in the letter P-5 addressed by the
Returning Officer to the Counting Supervisor and the reply by the Count-
ing Supervisor. Narinder Singh PW 9 has stated that he made a second
complaint during the fifth round of counting and a third complaint at the
beginning of third round of counting. Specific reference to these com-
plaints has been made in the election petition and the factum of these E
complaints has been stipulated by Shri Ajit Singh and also by Shri Rao
Nihal Singh in their depositions. The learned counsel has submitted that
unfortunately both these complaints are missing from the records and in
the absence of the complaints made by Rao Nihal Singh and 2nd and 3rd
complaints made by Narinder Singh, it becomes very difficult to appreciate F
the extent of irregularities in counting in respect of which the complaints
were made.

The learned Judge in the impugned judgment has held that PW 9
Shri N.S. Jadav was one of the counting agents and in the certificate of
satisfaction, he has described himself as Chief Counting Agent of the G
.election petitioner and in Ext. P-7 which was a complaint moved by him,
,. he also described him as Chief Counting Agent for Shri Ajit Singh. It has
been indicated by the learned Judge in the impugned judgment that a
reference to the testimony of Shri N.S. Jadav will show that Jadav had held
several fligh offices and he admittedly fought elections to the State Assemb- H

..
46 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A ly in the year 1968 and again the year 1972 from the very same Constituency
but he lost in such elections. As a matter of fact, in the year 1972 he fought
the election against Shri Bansi Singh respondent No. 1. The said Shri Jadav
moved an application Ext. P-7 alleging irregularity in the counting when _he
had found that Gianinder Singh who was one of the counting assistants had
misconducted himself. On the basis of this application scrutiny and
B rechecking were made and discrepancies were found. Accordingly, correc-
tions were made with respect of such Booth and it has been found that six
blank ballots and three ballots polled in favour of the petitioner had been
tied in the bundle of votes counted in favour of Shri Bansi Singh and with
respect of Booth No. 18 one blank ballot paper had been found in the
c ballot papers counted in favour of Shri Bansi Singh. Even before this
application was moved, the Returning Officer had removed Gianinder
Singh from his duty. In Para 4 of the application (Ext. P-7), it was stated:

"So to ensure justice please call bundles of ballot papers and check
that pertains to candidate for whom voter voted and not otherwise."
D
The learned Judge has indicated that the said complaint refers to the
bund_le which had been counted in favor of the candidates. Request for
rechecking was made in respect of such bundles. There was no reference
to the rejected ballot papers in the complaint. The learned Judge has held
E that from the said application it was obvious that the rejected papers in
fact were rejected in the presence of the candidates and their election
agents at the central table He has also indicated that after the rechecking,
the said Shri N.S. Jadav issued the following certificate:

"On rechecking being done 6 plus 1-7 votes of Bansi Singh were
F found bad and three votes of Ajit Singh were in Bansi Singh's
account were wrongly counted. But the R.O. removed these defects
to my satisfaction and result amended. Role of R. 0. is appreciable."

(Emphasis added)
G The learned Judge in the impugned judgment has also indicated how
the scale had been tilting in favour of the election petitioner Shri Ajit Singh
and returned candidate Shri Bansi Singh at different stages. He has indi-
cated that Shri Bansi Singh respondent No. 1 did not make any complaint
at any stage although on occasions he was trailing behind. The learned
H Judge has therefore indicated that since the counting had been done
) AJITSINGH v. BANSISINGH(G.N.RAY,J.] 47

properly, the said returned candidate could not raise objection even though A
he had been trailing behind on some occasions. The learned judge has also
indicated that Shri N.S. Jadav who had experience of previous elections,
was not expected to sleep over the matter when it related to the non-ex-
amination of the ballot papers by the Returning Officer. It has been
indicated by the learned Judge that Shri Bansi Singh had made a definite
B
statement that invalid ballot were being sorted out by the counting Super-
visors and the counting Assistants but the final order of rejection was being
passed by the Returning Officer. The learned Judge has also indicated that
there is evidence on record that after every round, the Returning Officer
had been preparing a certificate of satisfaction which was being signed by
the candidate or his election agent or by an agent present at the central c
table who had been described as Chief Counting Agent. Shri Ajit Singh has
admitted that he had signed one of the certificate of satisfaction which was
probably after the first round. He has however described that certificate as
a record of presence of the candidate. The learned Judge has indicated
that such certificate was not a certificate of the presence of the candidate D
as sought to be contended by Shri Ajit Singh because the document since
signed by Shri Ajit Singh ~n the face of it, indicates that it is a certificate
of satisfaction. PW 7 Nihal Singh has admitted having signed such certifi-
cates Exts. R4, RS and R6. Shri N.S. Jadav has admitted having signed
certificates Exts. R7, R8 and R9. The learned Judge has indicated that the
election petitioner Shri Bansi Singh himself has stated that after each E
count, the Returning Officer was obtaining the signatures of the candidate
or his counting agent in token of acceptance of the counting as correct.

We have been taken through the judgment impugned dealing with
contentions about improper counting and non consideration of the objec- F
tions and rejection of ballot papers at the level of counting assistants and
supervisors and non consideration of such rejected ballot papers by the
Returning Officer. We have considered the elaborate reasons given by the
learned Judge in the impugned judgment for not accepting the contentions
of the election petitioner about the aforesaid irregularities in counting of G
votes thereby materially affecting the election results. In our view, the
finding made by the learned Judge does not warrant any interference. We
may indicate here that although from a decision rendered in an election
petition appeal lies before this court and this Court can interfere with
finding of fact by making independent apprisal of evidences, this Court as
a matter of prudence, it not inclined to interfere with finding of fact unless H
48 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
r
A there is a very clear, convincing, cogent and unimpeachable evidence
against the correctness of the finding made by the High Court. In this
connection, reference may be made to he decisions of this Court in N./.
Singh v. L.C. Singh and others, [1977) 1 SCR 573 and Mohd. Yimus Saleem
v. Shiv .Kumar Shastli & Ors., [1974) 3 SCR 738. It has been held by this
Court that unless there are convincing and clinching reasons to take a
B different view, the finding arrived at by the High Court should not be
interferred with.

It has also been contended by the learned counsel for the appellant
that the election petitioner has specifically stated in para 8 of the ele<;:tion
C petition that Gianinder Singh, Malkhan Singh, Pratap Singh, Dalip Singh,
Hari Ram Yadav who were counting assistants/Suervisors were the rela-
tions and despite the petitioner's pointing this fact, the Returning Officer
did not remove them from the duty. Manoj Kumar, who is the grandson of
the brother of respondent No. 1 (brother's daughter's son) was posted as
D counting Supervisor at Table No. 13 and despite the objection he was not
removed. Ajit Singh the appellant made a written complaint before the
Returning Officer. The learned counsel has submitted that the learned
Judge in disposing of the aforesaid contention has wrongly held on specula-
tion that the appellant must have felt satisfied and did not press his
application.
E
It may be stated here that the learned Judge has rightly indicated
that in the election petition the aforesaid persons were described as
relations/proteges of the returned candidate Sri Bansi Singh. But at the
hearing of the election petition the election petitioner tried to improve his
F case by contending that the sai_d persons had also convassed for Sri Bansi
Singh. As the said case was not pleaded, in our view, the learned Judge
has rightly discarded such contention made at the hearing. Admittedly
Manoj Kumar was a relation of Bansi Singh. It however transpires that as
the objection against Manoj Kumar was made at a late stage, the Returning
officer could not accede to the request of changing him. Manoj Kumar was
G placed in Table No. 13. There is no specific allegation against Manoj
Kumar that he acted malafide and prejudicial to the interest of the election
petitioner. We also agree with the learned Judge that it was quite likely
that Manoj Kumar being a relation of Bansi Singh, the election agent of
the petitioner had kept close watch on his performance. In the absence of
H any convincing evidence about improper conduct on the part of Manoj
AJIT SINGH v. BANSI SINGH [G.N. RAY, J.] 49

Kumar, we do not think that the election result in favour of the returned A
candidate is liable to be set aside on the score that a relation of Shri Bansi
Singh was deputed for the counting of votes. Partap Singh had no role to
play in the matter of counting of votes for the Vidhan Sabha because he
was entrusted with the duty for counting of votes for the Parliamentary
Constituency. Gianinder Singh, as already stated, was changed by the
Returning Officer and the errors in his counting were rectified to the
B
satisfaction of the election petitioner and his agents. As a matter of fact,
Sri J adav the Chief Election Agent of the petitioner expressed his satisfac-
tion in writing and appreciated the role of the Returning Officer in taking
appropriate steps regarding the irregularities committed by Gianinder
Singh. Malkhan Singh was only a co-villager of Shri Bansi Singh. In the c
absence of any convincing and reliable evidence about misdeed by Malkhan
Singh in the matter of counting votes, the objection of the petitioner against
Malkhan Singh has rightly been rejected by the learned Judge. So far as
Sri Hari Ram Jadav is concerned, it appears that he was not initially
entrusted with the duty of counting of ballot papers and was kept on D
reserve. It was only when Sri R.D. Singh was relieved of his duty on his
own request, Sri Jadav had been brought in by the Returning Officer. Sri
Jadav is a lecturer of a Government College. He was initially appointed as
m
a lecturer 1961 on ad hoc basis but became permanent in 1969. Sri Jadav
had been holding office in the Government College since 1984 and on one
occasion he was transferred to another Government College but later on E
came back to the Government college to which he was posted earlier. The
learned Judge, in our view, has rightly held that there was no evidence
worthy of credence to hold that Sri Jadav was either appointed or posted
at the Government College at the instance or with the help of Shri Bansi
Singh. In our view, the learned Judge, is justified in holding that when F
complaints about irregularity committed in respect of a table was made,
the Returning Officer had justification to place Sri Jadav, a responsible
professor of a Government College at that table. We, therefore find no
substance in the contention raised about engagement of relation/proteges
of Shri Bansi Singh in the duties of counting ballot papers.
G
It has also been contended by the learned counsel for the appellant
that objections raised by the election petitioner and his agents and also by
Sri Rao Nihal Singh had not been considered by the Returning Officer
properly and gross irregularity in counting of ballot papers in favour of the
returned candidate was allowed by the inaction of the Returning Officer. H
50 SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A In our view, there is no substance in such contention. The Returning
Officer has taken appropriate steps in changing Gianinder Singh and
rectifying the mistake committed by him in counting ballot papers. As
indicated earlier after each round of counting, the certificate of satisfaction
about proper counting by the candidates or their election agents had been
obtained by the Returning Officer. There is no convincing and unimpeach-
B able evidence about irregularities in counting of votes materially affecting
the election result. In the aforesaid circumstances, there was no occasion
to set aside the election result. We, therefore, find no merit in this appeal
and the same is dismissed without, however, any order as to cost.

R.A. Appeal dismissed.