An agreement between the parties in an election petition for a recount of votes and rescrutiny of rejected ballots is not violative of any provisions of the Representation of the People Act, 1951, and the court can make orders in pursuance of such agreement.

For all intents and purposes the Election Petition is over and the order to follow is just a formality to comply with the requirements of law (The Representation of the People Act, 1951) and to put the records straight.

2. Shri Barkat Ullah, one of the contesting candidates of 55 Haja Assam Legislative Assembly Constituency (hereinafter referred as "the constituency)", filed an application under Sections 80-A and 81 of the Representation of the People Act, 1951 (as amended) (hereinafter referred to as "the Act"). The petitioner and six others including Shri Rabindra Nath Malakar, Respondent No. 1, contested for the Assembly Seat from "the constituency," Poll was held on 25-2-1978 and the counting of votes commenced and concluded on 27-2-1978. The Respondent No. 1 was declared elected having secured the highest number of votes, and the petitioner polled the second highest votes. The difference of votes between, the petitioner and the Respondent No. 1 according to the Final Result Sheet (Form No. 20) was shown as 695 but according to the Check Memo the said difference came to 309 votes only. It may be stated here that during the course of the trial of the election proceedings the parties and the witnesses conceded that there were errors in reflecting the correct votes in Form No. 20. All hands agreed that the correct resection was made in the Check Memos, and the difference between the petitioner and the Respondent No. 1 was 309 votes and not 895 votes (as reflected in Form No. 20). After completion of the counting and announcement of the result recorded in Form No. 20 the petitioner applied in writing to the Returning Officer for account of the votes in respect of Tables Nos. 3, 4 and 7 of the 4th round and also in respect of Table No. 3 of the 2nd round, setting fourth the grounds on which the petitioner had demanded such recount. The prayer was turned down by the Returning Officer. Thereafter, the petitioner filed this election petition praying inter alia "for a recount of the ballot papers and to declare the result of the election on that basis". The election petition was contested by the returned candidate Shri Rabindra Nath Malakar, who filed his written statement; issues were framed (it is needless to set forth the issues for the reasons to follow), petitioner examined himself and 7 other witnesses and the contesting respondent examined himself as R.W. 1 and also examined 3 other witnesses. In due course the matter came up for hearing arguments and during the course of the argument the parties filed a joint application which reads as under :

"The petitioner and the respondent No. 1 hereby state that in view of various manifest errors in calculation and the preparation of the check Memos (Ext. P-3 series) and also in view of the fact, admitted by both the parties, that the respondent No. 1 appears to have won the election by a margin of 309 votes only as per check Memos (Ext. P-3 series) and not by 695 votes as shown in Form No. 20 (Ext. P-4) both the parties agree as follows :-

(1) That sample recounting in respect of second and fourth rounds pertaining to all candidates may be made by an officer of the court appointed by Your Lordship in presence of the parties and their counsels and with help of tellers appointed by Your Lordship. Disputed rejected votes shall be referred to Your Lordship.

(2) That the said officer appointed by Your Lordship will rescrutinise all the rejected votes of all rounds and ascertain the number of petitioners votes improperly rejected.

(3) That if upon scrutiny and recount as aforesaid, and taking into account the improperly rejected votes, the margin of votes between the Respondent and the petitioner is reduced by 35 or more i.e. the margin between the two is reduced from 309 votes (as appears from the check Memos) to 274 or less, there shall be recount in respect of the first and third rounds also and upon such recount the result of the election of No. 55 Haje Legislative Assemble Const