Judgment

A. VARADARAJAN, J. (For, himself and on behalf of S.M. Fazal Ali, J.): - This appeal is directed against the judgment of the Punjab & Haryana High Court allowing Election Petition 6 of 1982 filed by respondent 1.

2. The appellant, Bhag Mal, was declared elected as a Member of the Haryana Legislative Assembly (Vidhan Sabha) from No. 3, Sadhura Scheduled Caste reserved constituency in the election held on 19-5-1982. The contest was between the appellant and 12 others including respondent 1, Parbhu Ram, who was the election petitioner, The appellant secured 20981 votes while respondent 1 secured 20971 votes and he was declared to have been elected. Respondent 1 challenged the election of the appellant on the ground that the counting was not proper and invalid and he prayed not only for recounting of the votes but also for declaration that he is the duly elected candidate.

3. Respondent 1 alleged in the election petition that the Returning Officer initially ordered the recount of the ballot papers of himself and the appellant in respect of all the booths after a sample checking but on the application of the appellant that the ballot papers of all the candidates should be recounted, to which respondent 1 consented, he ordered recount of all the votes. However, it was alleged that the Returning, Officer recounted the ballot papers of the appellant and respondent 1 alone and therefore the recount was void. In the original counting 1277 ballot papers were rejected as invalid but in the recounting by the Returning Officer 1377 ballot papers were rejected on that ground. The additional 100 ballot papers which were alleged to have been originally accepted in favour of respondent 1 were alleged to have been rejected by the Returning Officer under the influence of the Naib Tehsildar (Election) of Ambala who was alleged to have been favouring the appellant, Three ballot papers alleged to have been cast in favour of respondent 1 at booth No. 19 were alleged to have been rejected by the Returning Officer on the ground that they were meant for the Kalka constituency. Thus this ground alleged by respondent 1 relates to improper rejection of about 100. ballot papers said to have been cast in favour of respondent 1 in the recounting by the. Returning Officer.

4. Respondent 1 pleaded nine, other grounds in his election petition but did not lead any evidence or advance any argument in respect of the same.

5. As stated already, respondent 1 prayed not only for recounting and setting aside the election of the appellant but also for a declaration that he is the duly elected candidate.

6. The appellant alone contested the election petition. In his counter-affidavit he raised two preliminary objections namely, that copies and annexures supplied to him were not duly attested to be true copies under the signature of respondent 1 and therefore the election petition was liable to be dismissed and that the election petition had not been properly verified. These objections were rejected by the High Court by an order dated 4-10-1982.

7. On merits the appellant admitted that recount of the ballot papers of all the candidates was ordered by the Returning Officer but denied the other allegations made in the election petition and contended that the recounting was properly made and that there is no ground to order recounting by the Court.

8. On the pleadings the material issue framed by the High Court was as to whether respondent 1 is entitled to recount.

9. Though the Returning. Officer, R. W. 3. had stated in his oral evidence that only the ballot papers of the appellant and respondent 1 were in fact rechecked and recounted the High Court found on the basis of his report Exh. P. W. 4/4 and the entries made in the two forms No. 20 Exh. P. W. 1/1 and P. W. 1/2A, that the ballot papers of all the candidates were recounted by the Returning Officer and that in the application Exh. - P. W. 2/5 presented to the Returning Officer by respondent I immediately after the re