IN-Abs/train-data/summary/3268.txt

Six candidates contested the mid term election to the Orissa Legislative Assembly from Nilgiri Constituency.
The appellant was declared elected by a margin of 49 votes over respondent No. 1.
Respondent No. 1 filed an Election Petition challenging the election of the appellant and praying that instead of the appellant he should be declared as the successful candidate. 'the appellant 's election was challenged by respondent No. 1 mainly on the ground that through an error the returning officer did not enter the results of the second round of counting, on table No. 13 in Form No. 20 as prescribed by rule 55(7) of the Conduct of Election Rules 1961.
The allegation was that the results of the second round of counting on table No. 14 were erroneously entered twice in form No. 20, once against as the second round of table No. 14 and once against the second round of table No. 13.
During the hearing of the petition, the learned Judge enquired whether the parties were agreeable to a recount being taken of all ballot papers.
Counsel appearing for appellant and respondents Nos. 1 and 2 agreed to the course suggested by the learned Judge.
Respondents Nos. 3 to S did not appear at the trial.
After the recount was taken the Deputy Registrar submitted a detailed report which was made a part of the record of the Court.
Section 64 of the Act provides that in every election where a poll is taken votes shall be counted by or under the supervision of the returning officer and each contesting candidate his election agent and counting agent shall have a right to be present at the time of counting Section 169 of ' the Act empowers the Central Govt.
after consultation with the Election Commission to make rules for carrying out the purposes of the Act. ' Rule 56(7) of the Conduct of Election Rules 1961 provides that after the counting of all ballot papers contained in all the ballot boxes used in a constituency has been complete the returning officer shall make the entries in a result sheet in form No. 20 and announce the particulars.
The Election Commission has compiled a hand book for the use of the returning officers in order to avoid errors in counting of votes.
Para 14 B in chapter VIII of the hand book directs that the officer in charge of distribution of the ballot paper for counting should take out sufficient number of bundles from the drums so as to make up 1000 ballot papers and distribute them to each table for.
counting at each round.
After the counting of every suck 1000 ballot papers is over the bundles are given back to the supervisor of the counting table with the Check Memo duly filled in and signed by the Assistant. 'the form of the check Memo is at Annexure XII A and a sample form is at Annexure XII B of the handbook.
The original check memo of the 13th table in which the results of the second round was entered was not produced during the trial but a certified copy thereof was admitted in evidence. 'the appellant objected to its admissibility.
Dismissing the appeal, ^ HELD: The certified copy of the check memo is admissible in evidence Under section 74 of the Evidence Act, documents forming acts or records of the acts of public officers are public documents.
By section 77, such certified copies may be produced in proof of the contents of the documents of which they purported to be copies.
The check memo is a document forming records of the acts of a public officer and, therefore, a certified copy thereof given by the Collector in whose custody the document is kept can be admitted in evidence in proof of the contents of the original document [216A D] 213 In form No. 20 voles secured by the various candidates in the second round of counting on table 13 was wrongly mentioned.
Whereas the appellant had secured 21 votes only in the second round of counting on table No. 13, the final result sheet form No. 20 showed that he had secured 144 votes and whereas respondent No. 1 had secured 86 votes he was shown to have secured 109 votes.
The error was favourable to both the parties.
But whereas the error in favour of the appellant was of) the extent of 123 votes, that in favour of respondent No 1 was to the extent of 23 votes only.
As the appellant was declared to have won; the election by a margin of 49 votes only, it is respondent No. 1 and not the appellant who polled the largest number of votes.
It must follow that respondent No. 1 has secured the maximum number of valid votes and is, therefore, entitled to be declared as the successful candidate.
[216G H; 217C D] The High Court was in error in directing that the Court will recount all the ballot papers.
In the election petition filed by respondent No. 1 there was no request for recount.
The consent to the recount was given only by respondents No. 1 and 2.
The other respondents had no notice that recount would be suggested or accepted, when there was no plea about it in the pleadings of the parties.
The High Court widened unduly the scope of the election petition and landed itself into an unforeseen difficulty of having to decide points on which there was neither a pleading nor an issue.
True, that elections are not a matter of technicalities but even a strong and sensitive conscience must not book an endless litigation in which parties will fish for new challenges based on accidental discoveries of no more than plausible points to ponder.
The new errors on which the appellant relied had an air of plausibility and no more.
The new argument founded on those errors had therefore to fail.
[217E 218C]