ORDER Om Parkash, J.
1. In this petition filed under Section 81 of the Representation of the People Act, 1951 (briefly the Act, 1951), the petitioner who unsuccessfully contested the election seeks a declaration that the election of the respondent No. 1 who was declared elected as member of the Legislative Assembly from 358 Agra East Assembly Constituency, Agra, be declared void and seeks additional declaration that he be declared duly elected member of the Legislative Assembly from the said constituency instead. The election of the respondent No. 1 is said to be void mainly on the grounds that the result of the election, in so far as it concerns the respondent No. 1, was materially affected by, wrongly transposing the entries in Form 20 from Form 16 Part II and thereby reducing the total number of the votes of the petitioner from those actually received by him. In para 34 of the petition, correctness of the counting has not been assailed. It is averred that the counting was properly done and the entries in Form 16 Part II were made on the basis of the correct counting, but the grievance of the petitioner is that while incorporating the entries in consolidated Form 20 from Form 16 Part II, mistakes were made causing defeat of the petitioner. It is contended that if correct entries were made in Form 20 from Form 16 Part II, then the petitioner would have received majority of valid votes and he would have been declared as elected in place of the respondent No. 1.
2. The respondent No. 1 alone filed written statement contending that he was rightly declared elected. He also contended in Para 26 of the written statement that the entries were not correctly made in Form 16 Part II, inasmuch as the votes polled for the petitioner were inflated in Form 16 Part II to give undue advantage to him. He also assailed the correctness of the counting and scrutiny of the ballot papers. In para 30 of the written statement, the respondent No. 1 reiterated that a large number of invalid ballot papers had been improperly counted as valid votes for the petitioner and a large number of valid votes cast in his (respondent No. 1) favour I had been improperly rejected as invalid He also averred that his votes were mixed up with the votes of the petitioner and had been illegally counted for the latter's advantage.
3. On the pleadings of the parties, the following issues were framed on 14-4-1987 :
1. Whether 77, 128, 120 and 124 votes have been rightly recorded in the result sheet, Form 20, as against 97, 178, 170 and 174 votes having been recorded in Form No. 16 Part II for the petitioner i n respect of Polling Stations Nos. 100, 115, 117 and 121 respectively?
2. Whether the variation in the votes recorded in Form No. 16 Part II and Form No. 20 for the petitioner in respect of the aforesaid Polling Stations materially affected the result of the election of the respondent No. 1?
3. Whether the votes of the petitioner and the returned candidate were wrongly entered in Form No. 16 Part II?
4. Whether the correctness of the entries made in Form No. 16 Part II can be challenged by the respondent No. 1?
5. To what relief, if any, is the petitioner entitled?
4. Thereafter, the respondent made an application for framing additional issues, but that was rejected by the order dated 14-5-1987. After 14-4-1987 when the issues were framed, the parties were given time to file the list of witnesses and on 5-5-1987, the case was ordered to be listed on 14-5-1987 for the evidence of the parties. On 14-5-1987, the petitioner examined three witnesses and the office was directed to issue Dasti summonses to the petitioner for producing the remaining witnesses on 9-7-1987 for which the case was ordered to be listed. The evidence of two more witnesses of the petitioner was, however, recorded on 20th July, 1987 and then the petitioner closed his evidence. The case was then ordered to be listed on 12-8-1987 for the evidence of the respondent No. 1. However, no witness was produced by the respondent No. 1 on 12-8-1987 or up-till 25-8-1987, when the contesting parties made a joint application to summon the ballot papers for recounting. On such application of the parties, I passed the following order on 25-8-1987 :
"Both the parties have agreed and made a joint application that the ballot papers relating to the election in question be summoned from the District Election Officer, Agra and the same be rescrutinised and recounted in the High Court. From the case of Azmat Khan v. Khillan Singh, (AIR 1984 SC 304), it is amply clear that the recounting of all the ballot papers can be done with the consent of the parties.
The application is, therefore, allowed. The District Election Officer, Agra is directed to send all the ballot papers relating to the U. P. Legislative Assembly, 358 Agra East Assembly Constituency to the Deputy Registrar (Judicial) of this Court on or before 7-9-1987. The Deputy Registrar (Judicial) will rescrutinise and recount the ballot papers on 8-9-1987. He will communicate the result of rescrutiny and recounting soon after completing them. The petitioner and the respondent No. 1 can depute two persons each to remain present at the time of recounting before the Deputy Registrar (Judicial) besides their counsel So far as the disputed ballot papers are concerned, both the learned counsel for the parties agree that they would mutually settle the objections regarding the validity of the disputed ballot papers and their decision would be final. The petitioner and the respondent No. 1 both may remain present at the time of scrutiny, if they so like along with the two persons, whom they depute and their counsel.
The parties will bear the necessary expenses for the transportation of the ballot papers from Agra to this place, as incurred by the official deputed by the District Election Officer, Agra in this behalf.
The Registrar will depute an official of the High Court to deliver a copy of this order to the District Election Officer Agra within three days. His expenses will also be borne by the petitioner and the respondent No. 1, which will be deposited with the Registrar latest by tomorrow who will determine the expenses and inform the counsel till tomorrow."
5. This is how the Deputy Registrar was seized of the work of rescrutiny and recounting of the ballot papers. The Deputy Registrar finished the recounting except the 2530 ballot papers, which were disputed. Then, the parties submitted to the Court that their objections to the disputed ballot papers be settled but such submission was turned down by me, as both the parties agreed under the joint application that they would settle the objections relating to the ballot papers themselves. Then the petitioner made an application praying that the dispute with regard to the disputed ballot papers numbering2530 be referred to either to some judicial Officer or to some Officer of the election office. On such request, the District Election Officer, Agra was directed on 26-8-1988 to decide the objections of the parties relating to the disputed ballot papers numbering 2530 within two months from the date of the receipt of the disputed ballot papers which were to be sent to him by the Registrar and submit his report after recounting such ballot papers. The parties fully participated before the said authority in such recounting of the disputed ballot papers. The District Election Officer, Agra in compliance with the order of the Court submitted his report dated 4th November, 1988. Thereafter, the Deputy Registrar was directed on 12-12-1988 to prepare the result sheet in Form No. 20 in the light, of his own scrutiny and in the light of the report having been received from the District Election officer. By the forwarding letter dated 21-12-1988, the Deputy Registrar sent the result sheet so prepared in Form No. 20 stating that as a result of rescrutiny and recounting, the petitioner secured 24408 votes and the respondent No. 1 secured only 24182 votes.
6. Then the, case came up for final orders before me on 4-1-1989 and then Sri K. N. Tripathi, learned counsel for the respondent No. 1 made the following submissions :
1. That he had filed objections before the Deputy Registrar that the ballot papers and the accompanying documents had been tampered with and such tampering was discovered during the course of recounting before the Deputy Registrar. The ballot papers having been tampered with while they were in the custody of the High Court for the purpose of recounting much after result of the election having been announced by the Returning Officer, Sri Tripathi relying on Jagannath Rao, v. Raj Kishore, AIR 1972 SC 447, urged that the result as declared by the Returning Officer should be presumet to be correct and the case should not be decided on the basis of the recounting, said to be based on the tampered ballot papers.
2. That the respondent No. 1 made an application dated 20-1-1988 that the election petition be dismissed under Section 86 for non-compliance of Sub-section (3) of Section 81 of the Act, inasmuch as that the copy of the election petition being served on the respondent No. 1, w as not duly attested to be a true copy of the election petition. The copy of the election petition sent to the respondent No. 1 has been attached with such application, and
3. that before deciding the case finally, the Recriminatory Petition filed by the respondent No. 1 be disposed of.
7. On the other hand, Sri R. C. Srivastava, learned counsel for the petitioner contended that both the petitioner and the respondent No. 1 agreed for recounting and the only purpose of such agreement was that they would abide by the result of the recounting and both the petition and the recriminatory petition would be disposed of according to the result of recounting and no more objection would be raised. The parties having agreed to settle all the objections relating to the ballot papers mutually, Sri Srivastava states that it is no more open to the respondent No. 1 to raise any more objection. In short, the submission of Sri Srivastava is that when both the parties solemnly agreed to abide by the result of the recounting, the respondent No. 1 should not be permitted to wriggle out of the agreement and raise objections in such a manner so as to nullify the result of the recounting. Sri Tripathi, however, submits that the respondent No. 1 never agreed to abide by the result of the recounting and that the consent for the recounting was given only to avoid the oral evidence. What Sri Tripathi says is that his submission to dismiss the election petition under Section 86 of the Act for non-compliance of Section 81(3), his Recriminatory petition and his objections pertaining to tampering the ballot papers are independent of any mistake or irregularity done in the counting and the respondent No. 1 cannot be shut out from pressing his objections which he made before the Deputy Registrar complaining tampering of the ballot papers while they remained in the custody of the High Court.
8. Sri Srivastava urged that the general recounting was ordered by the court on 25th August, 1987 pursuant to the agreement of both the parties and both the parties clearly intended to abide by the result of recounting and get both the petition and the recriminatory Petition disposed of confirming to the result of the recounting. Both parties having agreed to such a course. Sri Srivastava urged that the respondent No. 1 should not be permitted to render the result of recounting useless by raising numerous objections at this stage. He also submitted that simply because the Court omitted to clearly state in the order dated 25-8-1987 ordering recounting that the petition and the recriminatory petition shall be disposed of on the basis of the result of recounting, the respondent No. 1 could not make a capital out of it by saying that he never agreed that the petition and the recriminatory petition be disposed of as per the result of the recounting.
9. The question for consideration is whether on the facts and circumstances of the case, it is open to the respondent No. 1 to contend that he is entitled to press his recriminatory petition and raise objections against the petition being decided on the basis of the result of the recounting. Both the parties having agreed for recounting and recounting having been ordered on their joint request, the normal course is to decide the proceedings initiated by the parties according to the result of recounting. If it were not so, then the recounting could not have been ordered merely because the parties desired so. The election Statute does not permit such a course. There is no provision in the Act, 1951 to seek recounting by agreement without intending to abide by the result of recounting. There is enough guideline on the point as to when recounting may be ordered. In Km. Sharda Devi v. Krishna Chandra Pant, AIR 1982 SC 1569, the Supreme Court succinctly stated the legal position regarding recounting in para 8 at page 1573 that when a petition is for relief of scrutiny and recount on the allegation of discount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established, a recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of miscount, petitioner must furnish prima facie proof of such error. The Supreme Court relying on Halshury's Laws of England. 4th Edn. Vol. 15, para 940, further observed:
"true it is that a recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of returning officer."
10. It cannot be disputed that while trying an election petition, the High Court is possessed of the power to order a recounting I of votes, but the principles on the basis of this power can be exercised are more or less the same as in relation to inspection of ballot papers which inhere the element of secrecy. A party is not entitled to claim recounting as a matter of course. He must establish a prima facie case that there has been improper reception, refusal or rejection of votes. In coming to the conclusion whether a recount should be ordered, the High Court has to give due weight to the reasons recorded by the Returning Officer. There should be good grounds that there has been some error or irregularity in the procedure of the Returning Officer. A recount can be ordered if a prima facie case is made out (See Nathu Ram Mirdha v. Gobardhan Soni, 1968 DEC 286 (SC) scrutiny or recount cannot be granted for a mere asking. It cannot be held either as matter of right or as matter of course. It is a matter of discretion which can be exercised only on good ground made out by evidence for believing that there has been a mistake on the part of the Returning Officer. In Tribeni Ram v. Satya Deo Singh, AIR 1966 All 20 a Division Bench of this Court held that a mere assertion or an expression of a suspicion by a petitioner that there has been a mistake in counting of votes will not justify a recount. A closeness of the voting or a narrow majority of votes does not itself justify a recount. There must be a prima facie evidence of good ground for believing that there may have been a miscount on the part of the returning officer.
11. The order dated 25-8-1987 for recounting has to be seen in the light of the above legal position and in the light of the pleadings of the parties. So far as the petitioner is concerned, he has not assailed the correctness of counting; rather his clear case is that counting was properly done and Forms 16 and Part II were properly prepared. The case of the petitioner is that while transposing the entries from Form 16 Part II to Form 20, mistakes were made and thereby the votes polled by the petitioner were reduced and the votes polled by the respondent No. 1 were inflated. This being so, there was no occasion to order recounting on the pleadings of the petitioner. It is the respondent No. 1 who stated in ground (F) of para 10 of the recriminatory petition that there was improper rejection of valid votes of the respondent No. 1 and improper acceptance of invalid votes in favour of the election petitioner and there were other mistakes also in the counting of votes due to which Form 16 Part II was not correctly prepared. It is clear from the pleadings of the parties that the question of recounting would have arisen only from the pleadings of the respondent No. 1 and not from the petitioner. The submission of Shri Tripathi that the respondent No. 1 agreed to recounting simply to cut short the evidence is, therefore, entirely wrong. The petitioner having examined as many as five witnesses, closed his evidence on 20th July 1987 and the order for recounting was made on 25-8-1987. After the petitioner's evidence was closed, the respondent No. 1 was to lead his evidence. The petitioner having already closed his evidence, cutting short of evidence can hardly be the reason, much less a good reason for presenting joint application seeking recounting. Moreover, looking to the aforesaid legal position, no recounting could be ordered on 25-8-1987 merely on the ground that the respondent No. 1 after the petitioner's evidence having been closed wanted to save time of the Court, which was to be spent on the evidence of the respondent No. 1 and on the evidence which was to be taken in the recriminatory petition. The recounting if at all on the facts of this case was required, could be ordered only on the pleadings of the respondent No. 1 in the recriminatory petition, provided he, prima facie, satisfied the Court that the Returning Officer had committed the mistake in the counting.
12. Sri Tripathi argued that before the recriminatory petition was taken up for hearing, there was no occasion for the respondent No. 1 to agree to get the recriminatory petition disposed of on the basis of the result of the recounting. This submission is wholly erroneous. When the parties entered into an agreement, then the stage of hearing becomes immaterial and by the agreement any thing howsoever important may be given up. The fact that the joint application for recounting was made before the hearing of the recriminatory petition in which correctness of counting and the entries being made in Form 16 Part II were assailed, absence of pleading for recounting in the election petition the fact that the joint application was made without any rider or reservation that the proceedings initiated by the parties will not be terminated and decided following the result of recounting and that no good reason having been given by either party for ordering recounting, clearly lead to an unerring conclusion that recounting was sought by the parties and ordered by me only to decide the election petition and the recriminatory petition finally conforming to the result of recounting. Simply because in the order dated 25-8-1987, it was omitted to state that the parties agreed to abide by the result of recounting and that the proceedings will be decided in accordance with the result of recounting, the respondent No. 1 cannot be allowed to make a capital out of it and to wriggle out of the solemn agreement on account of which the recounting was ordered, which could not have been ordered otherwise, on the facts and circumstances of this case. When the recounting was ordered in view of the agreement of the parties without asking them to show that the recounting was warranted by law, it goes without saying that it was so done that the parties will abide by the result of recounting and entire proceedings of the parties will be decided in accordance with the recounting.
13. My aforesaid conclusion is not only supported by facts and circumstances of the case but by case law as well. In Jabar Singh v. Genda Lal, AIR 1964 SC 1200, the Supreme Court summarised the legal position emerging from Section 100(1)(d) of the Act, 1951 in which the case of the instant parties fall, in para 10 on page 1206, thus : --
"Therefore, it seems to us that in the case of a petition where the only claim made is that the selection of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of Section 100(1)(d) itself. The enquiry is limited not because the returned candidate has not recriminated under Section 97(1); in fact, Section 97(1) has no application to the case falling under Section 100(1)(d)(iii), the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition."
Then, in para 11 on the same page, the Supreme Court further observed :
"There are, however, cases in which the election petition makes a double claim; it claims that the elections of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that Section 100 as well as Section 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that Section 97 comes into play. Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is Claimed by the petition cannot be said to be validly elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter-petitioner challenging the validity of the election of the alternative candidate. The result of Section 97(1), therefore, is that in dealing with a composite election, the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. .............. If the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by the petition. In such a case an enquiry would be held under Section 100 so far as the validity of the returned candidate's election is concerned, and if as a result of the said enquiry, declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate."
14. In the instant case, the respondent No. 1 has challenged the alternative claim of the petitioner that the latter be declared elected in place of the former and for that he filed recriminatory petition raising the ground, inter alia, covered by Section 100(1)(d)(iii). It is only to decide the claim of the petitioner seeking additional declaration that he be declared elected in place of the respondent No. 1, Section 97(1) comes into play and by filing the recriminatory petition thereunder, the respondent No. 1 but for the agreement would have become entitled to lead evidence to challenge the alternative claim of the election petitioner. The recounting as already pointed out would have been necessary only with reference to the alternative claim of the petitioner and under the ground raised in the recriminatory petition covered by Section 100(1)(d)(iii) and, therefore, Sri Tripathi is not right in urging that there was no occasion for the respondent No. 1 to abandon the recriminatory petition at the stage, when the election petition was under hearing. What he says is that the recriminatory petition would have come up for hearing only after the decision of the election petition and not before. True it may be in the normal circumstances when the parties do not reach any agreement, but by an agreement even the mandatory provisions of the procedural law can be whittled down or diluted. The recounting was ordered by virtue of the agreement of the parties in view of the ground raised in the recriminatory petition under Section 100(1)(d)(iii) and not otherwise and, therefore, it is wrong to say that the claim to prosecute the recriminatory petition further after the result of the recounting was not given up. In para 19 on page 1208, the Supreme Court made the most important observation on which I over whelmingly rely on to reject the contention of Sri Tripathi that by the agreement seeking recounting, a right to prosecute the recriminatory petition even after recounting was not given up and that is as follows :
"Therefore, it seems clear that if holding an enquiry either under Section 100(1)(d)(iii) or under Section 101, where Section 97 has not been complied with, it is not competent to the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity."
15. Following the above dictum of the Supreme Court, I hold that the recounting would have been ordered by virtue of the agreement of the parties without considering the pre-requisite conditions of it only to answer the ground raised in the recriminatory petition that there was improper rejection of votes polled for the respondent No. 1, and improper acceptance of votes in favour of the petitioner which ground comes under a broad spectrum of recounting. And, therefore, on the facts and circumstances of this case, it must be held that the respondent No. 1 is not entitled to take up the recriminatory petition and demand hearing thereon after recounting is over. As the parties reached the agreement and they intended to end the proceedings after the recounting, the normal rule that the recriminatory petition is generally taken up after the decision of the petition was given go-bye. For the reasons, I hold that omission of the sentence that the proceedings of the parties will come to an end after the recounting and both the petition and the recriminatory petition will be decided according to the result of the recounting is of no consequence in this case, as there was overwhelming facts and circumstances coupled with the legal position warranting the view that the recounting was ordered under the agreement of the parties not only to decide the election petition but the ground (F) raised in para 10 of recriminatory petition also finally following the result of the recounting without entertaining any more objection from either party. That was why it was clearly stated in the order dated 25-8-1987 ordering the recounting that all objections relating to the ballot papers would be mutually settled by the learned counsel for the parties. If the position were so as contended by Sri Tripathi and if the recriminatory petition were to be decided after the result of the recounting and if the parties were left free to raise any objection even after the recounting was over, then there was no need to abridge the right of the parties raising objections against the ballot papers and thereby depriving them of the right of hearing before the Court.
16. This being so, the respondent No. 1 is estopped from raising the objection that the election petition is liable to be dismissed for non-compliance of Section 81(3) that the copy of the election petition served on the respondent No. 1 was not duly attested. It is a moot question whether the election petition can be dismissed for the simple reason that the copy served on the respondent was not duly attested. Assuming what Sri Tripathi argued, is correct, the parties having agreed for recounting and getting their proceedings decided according to the result of the recounting, it is not open to the respondent No. 1 to raise any more objection.
17. Last comes the argument of Sri Tripathi that the ballot papers have been tampered with while they were in the custody of the High Court and, therefore, the result as announced by the Returning Officer should be presumed to be correct. To support this submission, Sri Tripathi relied on Jagannath Rao v. Raj Kishore, AIR 1972 SC 447. The facts of this authority are clearly distinguishable, inasmuch as the Supreme Court unequivocally reached the conclusion that the ballot papers had in fact been tampered with. In the instant case, there is no cogent material to accept the contention of the respondent No. 1 that the ballot papers were tampered with while they were in the custody of the High Court, Numerous objections were filed before the Deputy Registrar during the course of recounting by the respondent No. 1. But nowhere any specific averment was made about tampering. From the objections filed by him, it appears that he simply made conjectures and surmises and raised apprehensions about the ballot papers being tampered. On such material and vague averments, it is not possible to find favour with the submission of the respondent No. 1 that the ballot papers or any other record was tampered. Therefore, the result of the recounting cannot be ignored. As per report dated 21-12-1988, submitted by the Deputy Registrar, which is based on the result sheet Form 20 prepared by him pursuant to my order dated 12-12-1988 on the basis of the recounting done by him and by the District Election Officer, Agra, it is manifest that whereas, the petitioner secured majority of votes being 24408, the respondent No. 1 has secured only 24182 votes.
18. In the result, the election petition is allowed with costs which are assessed at Rs. 250/-, the election of Sri Satya Prakash Vikal (respondent No. 1) as a Member of Uttar Pradesh Legislative Assembly from 358 Agra East Assembly Constituency is set aside and Sri Satish Chand, the Election Petitioner is declared as elected from the said constituency instead. The recriminatory petition is dismissed.
19. Let a copy of this judgment be sent to the Hon'ble Speaker of the Legislative Assembly of Uttar Pradesh for information and necessary action.
20. As the Deputy Registrar who was entrusted with the responsibility of recounting has stated that several members of the staff assisted him in the recounting which was done with great skill, labour and attention in addition to their normal official duties, a sum of Rs. 500/- is a warded to them as cost, which will be paid out of the security deposited by the petitioner.