The importance of contemporaneous evidence and the prohibition of recounting after the issuance of Form No.20 in addressing claims of irregularities in the counting process.

JUDGMENT :

The petitioner is the defeated candidate and the first respondent is a returned candidate in the election held on 08.06.2018 to the Karnataka Legislative Council from the North East Graduates Constituency, consisting of the districts, namely, Bidar, Kalburagi, Yadagiri, Raichur, Koppal, Bellary and Davanagere (Harapanahalli).

2. The counting of the votes was held on 12.06.2018. The petitioner lost the election and the difference in votes polled in his favour and the first respondent was 321. In the election petition, the petitioner has taken the ground that the postal ballots were not properly accounted; 45 postal ballots voted in his favour were rejected by the returning officer without giving any justification.

3. The second ground taken by the petitioner is that for indicating first preferential vote, numerical figure ‘1’ was written within the circular geometrical shape in some ballot papers, and in some other ballot papers the same numerical was written inside the geometrical shape, ‘square’. When the counting was taken up, the returning officer instructed the counting supervisor to consider those ballot papers in which numerical ‘1’ was written within a circle as valid and reject the ballot papers in which numerical ‘1’ was marked in the square. This resulted in the petitioner loosing 1500 votes which were cast in his favour. There was no justification for rejecting the ballot papers which contained the marking of the first preferential votes within the square. This was an arbitrary decision taken by the returning officer at the time of counting, though he was not empowered to take such a decision.

4. The third ground taken by the petitioner is that the returning officer ought to have rejected 750 second preferential votes cast in favour of the first respondent. The decision taken by the returning officer in regard to counting of second preferential votes was in violation of paragraph 25(iii) of the Handbook.

5. The petitioner therefore stated that had the recounting of the votes taken place, he would have secured additional 1545 votes and thus he would have emerged a successful candidate. Though he took objections at the time of counting, and gave a representation to the Election Commission of India on 27.06.2018, his request was not considered and hence he has prayed for recounting of the votes, declaration that election of respondent No.1 to the Karnataka Legislative Council from North East Graduates Constituency as null and void and another declaration that he is the duly elected candidate.

6. The first respondent, denying all the averments of the election petition, has specifically contended that during the counting, the petitioner was represented by agents at all the counting tables. The returning officer made elaborate verification of the counting in presence of all the candidates and their agents. The first respondent secured 18678 votes and that the petitioner secured 18447 votes. During counting, neither the petitioner nor his agents took objection when some votes were rejected. Even there was no claim made before the returning officer that the postal ballots were not properly counted. Having kept quite at that time, seven days after the declaration of results, the petitioner made a request for providing some documents to him and thereafter came up with election petition making false and baseless allegations. The counting was properly made, and there was no any illegality in the counting process. Therefore the election petition is worth rejection.

7. The other respondents have not contested this election petition.

8. From the pleadings the following issues emerged:

ISSUES

1. Does the petitioner prove that postal ballot votes were not properly accounted?

2. Does the petitioner prove improper accounting while considering preferential votes?

3. Whether the petitioner proves that his interest is materially affected?

4. Does the first respondent prove that the election petition is liable to be rejected for the reasons