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CASE NO.: Appeal (civil)  4560 of 2006

PETITIONER: Baldev Singh

RESPONDENT: Shinder Pal Singh & Anr

DATE OF JUDGMENT: 19/10/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.24126 of 2004)

S.B. Sinha, J.

       Leave granted.

An election for the post of Sarpanch and Panches of the Gram  Panchayat, Village Ransih Khurd, District Moga was held on 29.6.2003.   Total votes polled in both the elections were shown to be 836.  The  Returning Officer found that both Appellant and Respondent No.1 had  polled 412 votes each.  Respondent No.2 herein is said to have got 4 votes.   8 votes were rejected.  Allegedly, a recounting was done.  The result of  recounting was same as that of the first one.  Returning Officer recorded the  said statement in the statutory Form No.IX prescribed in terms of Rule  33(2)(e) of the Punjab Panchayati Election Rules, 1994.  The total number of  votes polled was found to be 836 even in the election of the Panches.   Indisputably, election was held under the Punjab Panchayati Raj Act, 1994.   The State of Punjab in exercise of its power conferred upon it under the said  Act, framed rules known as Punjab Panchayat Election Rules, 1994 (for  short, ’the Rules’).  The relevant provisions of ’the Rules’ are as under :

"33.    Counting of Votes \026 (1) In a Sabha area where  there is only one polling station, the Returning Officer  shall follow the following procedure for the counting of  votes and declaration of result for election to the Gram  Panchayat.         (2)     The Presiding Officer shall, as soon as  practicable, after the close of the poll and in the presence  of any candidate or polling agent who may be present:         (a)     ..............         (b)     ..............          (c)     ..............         (d)     .............. (e)     After the counting of ballot papers contained  in all the ballot boxes has been completed, the  Returning Officer shall record a statement in  Form IX showing the total number of votes  poled by each candidate."   

"35.    Procedure in case of tie \026 If, after the counting of  votes is completed, votes polled by two candidates are  equal, and the addition of one vote will entitle any of  these candidates to be declared elected.  The Returning  Officer shall forthwith decide between those candidates  by draw of lots as the candidate in whose favour the lot  falls has received an additional vote."

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"38.    Election Papers to be forwarded to the District  Election Officer \026 The Returning Officer shall put the  election papers in separate packages on the outside of  which shall be endorsed a description of their contents,  and after sealing them in separate packets, forward to the  District Election Officer :

a)      the ballot-papers counted as valid; b)      the ballot-papers rejected as invalid; c)      the unissued ballot-papers; d)      the issued tendered ballot-papers; e)      the spoilt ballot-papers; f)      the cancelled/returned ballot-papers; g)      the tendered votes list; h)      the list of challenged votes; i)      account of ballot-papers; and j)      the marked copy of electoral roll."

The Returning Officer drew lots with written consent of both the  candidates, i.e., Appellant and Respondent No.1.  Appellant was declared  elected as Sarpanch of the Gram Panchayat.  However, immediately prior  thereto, the supporters of 1st Respondent allegedly raised a hue and cry, as a  result whereof, the Returning Officer could not enforce his decision.  He  immediately sent a fax message to the Deputy Commissioner, Moga seeking  his advice in the matter stating :

"Regarding Panchayat Elections, for the Panchayat  Election of Village Ran Singh Kurd I was appointed  R.O.I. for Nihal Singh Wala on 29.6.2003.  Election was  held and after counting the votes for Sarpanch, Sh.  Shinder Pal & Sh. Baldev Singh received equal 412-412  votes.  As both candidates received equal number of  votes, therefore, as per instructions result for Sarpanch  was to be declared by draw of lots.  Both the candidates  were called and draw was conducted before them and one  slip was drawn through another Returning Officer.  As  the slip in the name of Sh. Baldev Singh came out but  another candidate Sh. Shinder Pal Singh refused to accept  the decision and written paper was torn.  Now this office  does not have consent paper of both candidates given for  draw of lots.  It is requested to you to inform what action  should be taken in this matter."

The Deputy Commissioner forwarded the said fax message to the  Sub-Divisional Magistrate, Moga for necessary action, who, in turn  informed him that the decision taken should be enforced.  An endorsement  to that effect was also made by him.  The result of the election was thereafter  declared.   

An election petition was filed by the First Respondent herein  challenging the said election, wherein it was, inter alia, contended that only  821 votes had been polled and Appellant herein had secured only 397 votes  whereas he had secured 412 votes.  It was averred :  

(1) two votes were kept aside illegally and unjustly by the Presiding  Officer;  (2) votes in respect of serial No.471 and 614 were initially counted as  valid votes but the same were later on declared invalid;   (3) rejection of 8 votes was improper.   

An averment moreover was made that he had requested for recounting  of votes, but the Returning Officer/Polling Officer did not pay any heed  thereto and, thus, mandatory requirement of Rule 35 had not been complied  with.  

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It is of some significance to notice the averments made in Sub-para  (v) of paragraph (3) of the election petition, which reads as under :

       "(v)    That Rule 35 read with Rule 33 of the  Punjab Panchayat Election Rules 1994 provides that the  Presiding Officer shall as soon as practicable after the  close of the poll and in the presence of any candidate or  polling agent who may be present shall start counting of  votes and if 2 candidates poll equal number of votes,  draw of lots is to decide the winning candidate.  The  Returning Officer on 30.6.2003 requested the Deputy  Commissioner Moga seeking his advice regarding the  manner in which the result to be declared.  It is also  alleged by the Returning Officer that written paper was  allegedly torn by the petitioner which fact is vehemently  denied.  The petitioner was not present when the alleged  draw of lots took place.  The alleged procedure followed  by the Returning Officer for drawing of lots by asking  another Returning Officer to take out the lot is illegal.   The mandatory provisions of Rule 35 is that Returning  Officer himself shall forthwith decide between those  candidates securing equal number of votes by draw of  lots.  This power of drawing of lots cannot be delegated  to another person.  This objection is without prejudice to  the fact that in fact petitioner secured 412 votes.   Respondent no.1, 397 votes and respondent no.2, 4 votes.    8 votes were allegedly rejected.  The result prepared is  wrong at the instance of the respondent no.1."           

The election petition was verified by Respondent in the following  terms :

"Verified that the contents of paras Nos. 1 to 6 & 9  of the petition are true and correct to the best of my  knowledge and belief and contents of paras Nos. 7 & 8  are believed to be correct from the knowledge derived  from others."                          Before the learned Election Tribunal, the Returning Officer, the Sub- Divisional Magistrate, the Presiding Officer, as also the Assistant Returning  Officer were examined as R.W.2, R.W.3, R.W.4 and R.W.5.   

In his deposition, the Returning Officer, Krishan Bhagwan Kansal  categorically stated that the consent paper was torn and, thus, he had no  proof to say that chit was drawn with the consent of both the candidates.  He  was candid enough to admit that the chits drawn by him were not with him  stating :

"I do not have paper chit declaring winner because  that was torn I cannot tell who had torn that chit for  making toss chits bearing names of both candidates were  drawn.  I do not know who torn the consent paper."   

R.W.3, Shri Gurnam Singh Gill, the Sub-Divisional Magistrate proved  the fax message, notice whereof has been taken by us hereinbefore.  R.W.4,  Shri Jaswinder Singh was the Presiding Officer.  He supported the case of  the Appellant.  In his cross-examination, he stated :  

"The counting of votes started at about 9-10 at  night and finished at 11-11-1/4 at night.  The counting of  votes was done twice.  I cannot tell how many votes were  counted first time and how many after.  Self stated  whatever result is.  8 votes were rejected.  Cannot tell  that how many votes were rejected during first counting,  second time 8 were rejected.  I submitted result on form 9

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in Nihal Singh Wala.  At that time it was submitted at  12/12.15.  I do not know what action was taken after that.

Q.      Do you have any objection if recounting is conducted  ?

Ans.  It is for the administration to see what has to be  done."                He had proved Form No.IX.  He reiterated before the Tribunal the  contents thereof.   

       R.W.5, Ranjit Singh, was the Assistant Returning Officer.  He also  stated that both the candidates had polled equal number of votes and  thereafter two slips were prepared for drawing lots.  The same were mixed  up at the consent of both the candidates.  As per instructions of R.W.2, he  took out the slips and when it was opened, the name of Appellant was found  who was then declared elected.  The learned Tribunal ignoring the  aforementioned oral evidence of the responsible officers, directed recounting  opining :

"There is no documentary evidence regarding conducting  of toss.  Neither is there consent of the parties nor any ’parchi’  which shows that toss was conducted.  Both the petitioner and  the respondent no.1 allegedly secured 412 votes conclusive  evidence and satisfaction of the petitioner.  Therefore, in the  circumstances it has become necessary to have recounting of  votes in the presence of both the parties, to put the issue beyond  doubt as also to meet the ends of justice."     

       Upon recounting, First Respondent was stated to have received 412  votes, whereas Appellant was said to have 398 votes.  First Respondent was  declared to have been elected, directing :

"In view of the above circumstances, the election  staff on duty had not prepared the result correctly on the  basis of valid votes polled in favour of the candidates.   On recounting of the votes by the undersigned, it has  been found that Sh. Shinder Palsingh, petitioner had got  412 votes, whereas Respondent No.1 Baldev Singh had  polled 398 votes and Sh. Bhola Singh Respondent No.2  had got 4 votes and 8 votes had been cancelled.  Thus Sh.  Shinder Palsingh, petitioner has got 14 votes more than  Sh. Baldev Singh, Respondent No.1.  Therefore, Sh.  Shinder Palsingh, petitioner is declared as elected  Sarpanch of Gram Panchayat in lieu of Sh. Baldev Singh,  Respondent No.1, who had earlier been declared as  Sarpanch of village Ransih Khurd.  The head of the  department of Presiding Officer may be asked to take  strict departmental action against the Presiding Officer,  who with malafide intention and for his personal motive,  prepared the result in favour of respondent no.1 against  the result of actual votes polled and due to this reason the  parties had to indulge in unnecessary litigation and  harassment.  A copy of the order is forwarded to the  District Development and Panchayat Officer, Moga and  Block Development and Panchayat Officer, Nihal Singh  Wala for necessary action.  After compliance, the file be  consigned to the record room."   

       The appeal preferred by Appellant herein was dismissed by the High  Court merely stating :

"Applying the above principles to the present case,  it is sent that there was specific averment in the election

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petition that even though, 821 votes were polled, the staff  wrongly counted the same to be 836.  It was also clearly  stated that the result was not declared on the same day  and there was no document showing draw of lots.  The  Tribunal was satisfied that recount was necessary.  On  summoning of record, the averments in the election  petition stood proved.  Result of recount being different  does not necessarily mean that the recount was justified  but it is not possible to hold that there was no material  before the Tribunal to hold that there was prima facie  case or that recount was not validly ordered.  Since the  recount was validly ordered, the result thereof could be  taken into account.  The contention on behalf of the  appellant that due opportunity was not given to the  appellant to prove that 14 votes which were found to be  less had been lost, cannot be accepted.  The appellant did  not raise any such point when sealed cover was opened  or even thereafter before the Tribunal."         

       Mr. Salil Sagar, learned counsel appearing on behalf of Appellant  contended that the Tribunal as also the High Court acted illegally and  without jurisdiction in passing the impugned judgment in so far as they  failed to take into consideration that no case for recounting has been made  out.  It was pointed out that First Respondent, at no point of time, raised any  objection in regard to the correctness of counting of votes before the  Presiding Officer.  He did not file any application for recounting.  The  Tribunal, although, proceeded to determine the question on the basis of the  purported violation of the Rules, it would appear from the depositions of the  witnesses that they had not been cross-examined on that question.  The High  Court as also the Tribunal, it was contended, without finding any prima facie  case in favour of Respondent for a recounting, directed so and that too in  utter disregard of the evidences on record.   

       Mr. S.K. Bagga, learned Senior Counsel appearing on behalf of the  Respondents, on the other hand, urged that the votes were incorrectly  counted as would be evident from the result of the recounting.  The  Presiding Officer, Mr. Bagga, submitted, merely deposed about the drawing  of lots, but in doing so, he had delegated his power to the Assistant  Returning Officer and thus, the entire process was illegal.  The Tribunal,  keeping in view the materials on record, thus, had rightly directed recounting  of votes with a view to determine the issue.  The order of recounting was  passed, it was submitted, to meet the ends of justice and only on the basis of  the result of recounting.                   Election for the post of Sarpanch and Panches are, indisputably,  governed by the Punjab State Election Commission Act, 1994.   

       Sections 66, 68 and 69 of the said Act read as under :

"66.    Counting of votes.- At every election where a poll  is taken, votes shall be counted by or under the  supervision and direction of, the Returning Officer, and  each contesting candidate, his election agent and his  counting agents, shall have a right to be present at the  time of counting."

"68.    Equality of votes.- If, after the counting of the  votes is completed, and the addition of one vote will  entitle any of those candidates to be declared elected, the  Returning Officer shall forthwith decide between those  candidates by lot, and proceed as if the candidates on  whom the lot falls had received an additional vote."

"69.    Declaration of results.- When the counting of the  votes has been completed, the Returning Officer shall, in

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the absence of any direction by the Election Commission  to the contrary, forthwith declare the result of the election  in the manner provided by this Act or the rules made  thereunder."             

       Section 76 of the Act provides for presentation of an election petition  on one or more grounds specified in Sub-Section (1) of Section 89 to the  Election Tribunal.  Section 78 provides for the contents of the election  petition.  Clauses (a), (b) and (c) of Sub-Section (1) of the said provision  reads thus :   "a)     contain a concise statement of the material facts on  which the petitioner relies;

b)      set forth full particulars of any corrupt practice that  the petitioner alleges, including a statement as possible,  of the names of the parties alleged to have committed  such corrupt practice or practices and the date and place  of the commission of such practice; and

c)      be signed by the petitioner and verified in the  manner laid down in the Code of Civil Procedure, 1908  for the verification of pleadings;"

       Section 83 provides for secrecy of voting not to be infringed.  Sub- Clauses (iii) and (iv) of Clause (d) under Sub-Section (2) of Section 89  provide that subject to the provisions of Sub-Section (2), the Election  Tribunal is of the opinion that the result of the election, in so far as it  concerns a returned candidate, has been materially affected by the improper  reception, refusal or rejection of any vote or the reception of any vote which  is void or by any non-compliance with the provisions of the Constitution of  India or of the said Act or of any rules or orders made under the said Act, the  Election Tribunal shall declare the election of the returned candidate to be  void.   

       The Election Petition was required to be verified in terms of Order VI  Rule 15 of the Code of Civil Procedure, 1908.  It provides :

"15. Verification of pleadings.\026 (1) Save as otherwise  provided by any law for the time being in force, every  pleading shall be verified at the foot by the party or by  one of the parties pleading or by some other person  proved to the satisfaction of the court to be acquainted  with the facts of the case.         (2)     The person verifying shall specify, by  reference to the numbered paragraphs of the pleading,  what he verifies of his own knowledge and       "           

       The verification of an election petition, it was trite, must be done  strictly in terms of Order VI Rule 15 of the Code of Civil Procedure.  It was,  thus, incumbent on the part of Appellant herein to specifically state as to  which statements made in the election petition were true to his knowledge  and which were true to his belief.  A factual averment made in the election  petition cannot be both true to the knowledge and belief of the deponent.   

       We may furthermore notice that although in the election petition it has  been contended that First Respondent had requested for recounting of votes,  the officers who examined themselves were not cross-examined on that  point.  The said statement would, thus, be deemed to have been admitted.   Even the purported illegalities which, according to Respondents, would lead  to declaration of election of Appellant herein to be void had not been put to  the witness in cross-examination.   

       The question which, therefore, would arise is ’as to whether the

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learned Tribunal was correct in directing recounting?’  The officers had  categorically stated that consent paper was torn.  The fax message which has  been sent immediately to the Collector of the District was a  contemporaneous document, the genuineness whereof has not been  questioned.  Apart from the statutory Form, even in the said fax message the  Returning Officer was categorical in his statement that both the candidates  have received equal number of votes and thus, the result of the election to  the post of Sarpanch was declared by draw of lots.  It also mentioned about  the tearing of the written paper on which consent had been given and only in  the aforementioned situation, sought for guidance as to what action should  be taken in the matter.  The official act should be presumed to have been  done in the ordinary course of business.  A recounting, as is well known,  should not ordinarily be directed to be made.  There exists certain limitation  in this behalf.   

       The question came up before this Court in M. Chinnasamy vs. K.C.  Palanisamy & Ors. [(2004) 6 SCC 341], wherein this Court opined :

                "The question as to what would constitute material  facts would, however, depend upon the facts and  circumstances of each case.  It is trite that an order of re- counting of votes can be passed when the following  ingredients are satisfied: (1) if there is a prima facie case;  (2) material facts therefor are pleaded; (3) the court shall  not direct re-counting by way of roving or fishing  inquiry; and (4) such an objection had been taken  recourse to.         The necessity of "maintaining the secrecy of ballot  papers" should be kept in view before a re-counting is  directed to be made.  A direction for re-counting shall not  be issued only because the margin of votes between the  returned candidate and the election petitioner is narrow."

       The Court furthermore emphasized the requirements of pleadings  containing material facts which are salutary in nature.  In that case also it  was found that no material had been brought on record to show that the  factual findings of the Returning Officer were incorrect.  This Court rejected  the ’doctrine of prejudice’, in such a matter, as being not a relevant factor,  having regard to the constitutional and statutory scheme involving holding  of election and the consequences emanating from the direction of recounting  which could lead to identification of voters as the same would not be  desirable.  It was reiterated that pleadings of material fact would include  disclosure of all such information which if not rebutted would result in  allowing the petition.  It was opined :

       "Had the election petitioner in his pleadings, as  noticed hereinbefore, disclosed the details of the names  of polling stations, counting centres, tables, particulars of  round of the counting of votes in relation whereto alleged  irregularities had taken place under all the four categories  and basis of material facts and particulars, the High  Court, if finds that the election petitioner has made out a  prima facie case for scrutiny of ballot papers and re- count, may direct re-count of ballot papers in respect of  the said votes only and not the entire votes.  The High  Court further failed to notice that in para 12 of the  election petition it has merely been pointed out that  irregularities in respect of counting had materially  affected the election and in that view of the matter, the  High Court should not have directed re-counting of all  the votes which would amount to going beyond the said  election."

       This Court in arriving at the said decision took into consideration

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various decisions, including T.A. Ahammed Kabeer vs. A.A. Azeez &  Ors. [(2003) 5 SCC 650], whereupon Mr. Bagga has relied.  Therein it has  been held :

"It is true that a re-count is not to be ordered merely  for the asking or merely because the court is inclined to  hold a re-count. In order to protect the secrecy of ballots  the court would permit a re-count only upon a clear case  in that regard having been made out. To permit or not to  permit a re-count is a question involving jurisdiction of  the court. Once a re-count has been allowed the court  cannot shut its eyes on the result of re-count on the  ground that the result of re-count as found is at variance  with the pleadings. Once the court has permitted re-count  within the well-settled parameters of exercising  jurisdiction in this regard, it is the result of the re-count  which has to be given effect to."          

This Court did not agree with the said judgment in M. Chinnasamy  (supra) stating :         

"With respect, we are not in a position to endorse  the views taken therein in their entirety. Unfortunately,  the decision of a larger Bench of this Court in Dr. Jagjit  Singh v. Giani Kartar Singh [AIR 1966 SC 773] had not  been noticed therein. Apart from the clear legal position  as laid down in several decisions, as noticed  hereinbefore, there cannot be any doubt or dispute that  only because a re-counting has been directed, it would  not be held to be sacrosanct to the effect that although in  a given case the court may find such evidence to be at  variance with the pleadings, the same must be taken into  consideration. It is now well-settled principle of law that  evidence adduced beyond the pleadings would not be  admissible nor can any evidence be permitted to be  adduced which is at variance with the pleadings. The  court at a later stage of the trial as also the appellate court  having regard to the rule of pleadings would be entitled  to reject the evidence wherefor there does not exist any  pleading."

We may also notice that in Chandrika Parshad Yadav vs. State of  Bihar & Ors. reported in (2004) 6 SCC 331, this Court dealing with the  provisions of Bihar Panchayat Election Rules, stated the law in the following  terms :

"Rule 79 as noticed hereinbefore enables a  candidate to file an appropriate application for re- counting of votes. Rule 79 unlike rules framed by other  States does not say that such an application would not be  maintainable after declaration of the votes polled by the  parties or prior thereto. Such an application, therefore,  can be filed at any point of time. The very fact that sub- rule (3) of Rule 79 provides for amendment of the result  relating to the votes polled by the respective candidates  and as such amended result is required to be announced  in the prescribed form under sub-rule (2) of Rule 79, the  same itself is a pointer to the fact that even after  announcement of result an application for re-counting  would be maintainable. It may be true that only because  such an application had not been filed before the  Returning Officer by itself may not preclude the Election  Tribunal to go into the question of requirement of issuing  a direction for re-counting but there cannot be any doubt

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whatsoever that Rule 79 serves a salutary purpose.  Counting of ballot papers in terms of the rules takes place  in presence of the candidate or his counting agent. When  an agent or a counting agent or the candidate himself  notices improper acceptance or rejection of the ballot  papers, he may bring the same to the notice of the  prescribed authority. As noticed hereinbefore, in a given  case, an application for re-counting either before  announcement of the result or thereafter, would be  maintainable. Once an application is filed by an agent or  a counting agent or the candidate himself pointing out the  irregularities committed by the officers appointed for  counting the ballot papers, immediate redressal of  grievances would be possible. As indicated hereinbefore,  while filing such an application the basis for making a  request for re-counting of votes is required to be  disclosed. The Returning Officer is statutorily enjoined  with a duty to entertain such an application, make an  inquiry and pass an appropriate order in terms of sub-rule  (2) of Rule 79 either accepting in whole or in part such  requests or rejecting the same wherefor he is required to  assign sufficient or cogent reasons. In the event such an  application is allowed either in whole or in part, he is  statutorily empowered to amend the results also.

Ordinarily, thus, it is expected that the statutory  remedies provided for shall be availed of. If such an  opportunity is not availed of by the election petitioner; he  has to state the reasons therefor. If no sufficient  explanation is furnished by the election petitioner as to  why such statutory remedy was not availed of, the  Election Tribunal may consider the same as one of the  factors for accepting or rejecting the prayer for re- counting. An order of the prescribed authority passed in  such application would render great assistance to the  Election Tribunal in arriving at a decision as to whether a  prima facie case for issuance of direction for re-counting  has been made out."

In M. Chinnasamy (supra), the decision P.K.K. Shamsudeen vs.  K.A.M. Mappillai Mohindeen & Ors. [(1989) 1 SCC 526] had been  noticed.  Referring to Dr. Jagjit Singh v. Giani Kartar Singh, it had been  observed :  

"In Jagjit Singh (Dr.) v. Giani Kartar Singh2  before a three-Judge Bench of this Court, a contention  was raised to the effect that when a Tribunal considering  the evidence in the light of the allegations made by the  election petitioner was satisfied that inspection should be  ordered, the same should not ordinarily be reversed in  appeal wherein this Court held: (AIR pp. 784-85, para  35) "35. We are not prepared to accept this  contention. The order passed by the Tribunal clearly  shows that the Tribunal did not apply its mind to the  question as to whether sufficient particulars had been  mentioned by the appellant in his application for  inspection. All that the Tribunal has observed is that a  prima facie case has been made out for examining the  ballot papers; it has also referred to the fact that the  appellant has in his own statement supported the  contention and that the evidence led by him prima  facie justifies his prayer for inspection of ballot  papers. In dealing with this question, the Tribunal

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should have first enquired whether the application  made by the appellant satisfied the requirements of  Section 83(1) of the Act; and, in our opinion, on the  allegations made, there can be only one answer and  that is against the appellant. We have carefully  considered the allegations made by the appellant in  his election petition as well as those made by him in  his application for inspection, and we are satisfied that  the said allegations are very vague and general, and  the whole object of the appellant in asking for  inspection was to make a fishing enquiry with a view  to find out some material to support his case that  Respondent 1 had received some invalid votes and  that the appellant had been denied some valid votes.  Unless an application for inspection of ballot papers  makes out a proper case for such inspection, it would  not be right for the Tribunal to open the ballot boxes  and allow a party to inspect the ballot papers, and  examine the validity or invalidity of the ballot papers  contained in it. If such a course is adopted, it would  inevitably lead to the opening of the ballot boxes  almost in every case, and that would plainly be  inconsistent with the scheme of the statutory rules and  with the object of keeping the ballot papers secret."

       Recently in Gursewak Singh vs. Avtar Singh & Ors. [(2006) 4 SCC  542, this Court opined : "While interfering with an order of the Election  Tribunal, particularly, in view of the purport and object for  which such Tribunal had been constituted, the High Court  had an obligation to assign sufficient and cogent reasons.  The High Court, as noticed hereinbefore, proceeded on the  basis that the Appellant was responsible for the mess  created in the matter of maintenance of records. There are  items of evidence on record to show that ballot papers had  not been properly kept. Some were kept in loose sheets.  They had been counted separately. The Tribunal noticed  how ballot paper envelopes were found in suspicious  circumstances. Instead of breaking the seals at one end, large  number of ballots were found in loose condition. 200 ballot  papers of booth No. 41 were found in the bag of booth No.  43. The Tribunal, therefore, came to the conclusion: ".....From a comparative analysis of the  position (booth-wise) of the results after recounting,  as given tabular form on page 13 above, it is  apparent that there is no issue as pertaining to the  counting process in Booth 42, as the total number of  ballots polled (966) is same, and there is rather a  decrease of 4 rejected votes, which have now been  counted in the tally of the Respondent 1, thereby  increasing his tally of booth 42 to 467 from 463.  Similarly, in relation to Booth 43, if one takes into  account that 2-ballot papers in favour of the  petitioner which pertained to Booth 41 have  somehow managed to enter the packet containing  ballot papers of Booth 43 then the matter is  somewhat regular, as the total votes polled in the  booth 43 is similar at 902, and there is only marginal  difference of 1 extra vote which was polled in  favour of petitioner being declared rejected..."

        We, therefore, in view of the facts and circumstances of the case, are

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unable to uphold the findings of the Tribunal and the High Court.  We set  them aside accordingly.  The appeal is allowed.  The First Respondent shall  bear costs of the Appellant, which is quantified at Rs.10,000/-.